Category Archives: Regulation

Supreme Court Curtails Federal Wetlands Protections; Developers Still Must Consider State and Local Wetlands Laws

On May 25, 2023, the Supreme Court issued its long-awaited decision in Sackett v. Environmental Protection Agency, which significantly narrowed the Clean Water Act’s (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas.

The Court’s Ruling

The Supreme Court’s ruling has two basic parts:

  1. It adopts Justice Scalia’s plurality opinion in Rapanos v.…
  2. More

EPA Proposes New Power Plant Rule That Promises Major Greenhouse Gas Emissions Reductions in the Coming Years

After weeks of hints and leaks, yesterday morning (May 11, 2023), EPA proposed a new rule regulating emissions from power plants. The proposed rule would apply to new and existing gas plants and existing coal plants—new coal plants are separately regulated—and promises to significantly cut carbon and other harmful air pollutant emissions from fossil plants over the next two decades and beyond.

EPA’s accompanying Fact Sheet spells out the proposed rule’s emissions reductions estimates:

EPA has evaluated the emissions reductions,… More

Berkeley’s Ban on Natural Gas in New Construction is Preempted: What Will Happen to Other Local Bans?

On Monday, the 9th Circuit Court of Appeals held that the City of Berkeley ordinance entitled “Prohibition of Natural Gas Infrastructure in New Buildings” was preempted by the Energy Policy and Conservation Act.  The relevant language in the EPCA provides as follows: 

no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.… More

OMB Proposes to Revise Circular A-4; This is Not Trivial

On Thursday, the Office of Management and Budget released proposed revisions to “Circular A-4”.  It also released a separate preamble, explaining its thinking and asking for comment on certain identified issues.

Circular A-4 is almost certainly the most important document that most people have never heard of, since it governs how federal agencies conduct cost-benefit analysis of potential federal actions.  The proposal is not a massive rewrite of Circular A-4,… More

Red States Still Have Nothing to Complain About Regarding the Social Cost of Carbon

Today, the 5th Circuit Court of Appeals dismissed for lack of standing claims by a number of states challenging the Biden Administration’s Interim Estimates of the Social Cost of Carbon.  The Court had telegraphed this outcome last spring when it vacated a District Court injunction against use of the Interim Estimates, noting that:

The Government Defendants are likely to succeed on the merits because the Plaintiff States lack standing.… More

Deja Vu One More Time? What Will Happen If EPA Ignores CASAC Regarding the Ozone NAAQS?

Last week, Inside EPA (subscription required) reported that the Clean Air Science Advisory Committee has pretty much agreed that the National Ambient Air Quality Standards for ozone must be made more stringent.  Apparently, the panel is looking at recommending that the primary standard be reduced from 70 ppb to a range of 55-60 ppb.  CASAC is also recommending a reduction in the secondary standard. 

I’ve blogged numerous times about the role that CASAC recommendations play in judicial review of EPA’s decisions concerning setting the NAAQS. … More

EPA Proposes Safe Drinking Water Act Standards for PFAS: Forever Chemicals Will Lead to Forever Superfund Sites

Yesterday, EPA proposed to regulate certain PFAS under the Safe Drinking Water Act.  EPA proposed Maximum Contaminant Level Goals for PFOA and PFOS of zero.  It proposed Maximum Contaminant Levels for PFOA and PFOS of 4.0 parts per trillion. 

EPA also proposed MCLGs and MCLs for PFNA, PFHxS, PFBS, and HFPO-DA (“GenX Chemicals”) based on a novel hazard index approach to these compounds as a group. … More

It’s More Important for EPA to Ensure that States Are Good Neighbors Than That They are Perfect Neighbors

Last week, D.C. Circuit Court of Appeals rejected challenges to EPA’s “Revised Cross-State Air Pollution Update Rule”.  The Court found that the Rule was “an appropriate exercise of EPA’s statutory authority”. 

I find the decision noteworthy for two reasons.  First, the decision is a full-throated endorsement of judicial deference to agency decision-making.  Of course, this isn’t a Chevron case;… More

News Flash! International Cooperation on the Environment Remains Possible

In these times of much woe, it’s always noteworthy when the mainstream media reports good news.  Especially when it’s good news about effective international cooperation on environmental protection issues. 

Today, the New York Times reported that a recent assessment shows that the world is on track to reach pre-1980 levels of upper atmosphere ozone by roughly 2040.  That is in spite of the discovery in 2018 of “rogue” use of chlorofluorocarbons,… More

EPA Proposes to Lower the PM2.5 NAAQS — Searching For the Goldilocks Level

EPA has finally proposed revisions to the national ambient air quality standard for PM2.5.  The Administrator is proposing to lower the standard from 12.0 ug/m3 to a range of 9.0 to 10.0 ug/m3. 

Readers of this space will recall that the Clean Air Science Advisory Committee recommended that EPA lower the PM2.5 NAAQS to between 8.0 and 10.0 ug/m3.  Environmentalists aren’t going to be happy with any standard above 8.0 ug/m3 and it’s likely that conservatives aren’t going to be happy with any decrease from the current standard.… More

MassDEP Proposes Cumulative Impact Analysis Regulations — It’s About to Get Interesting.

After more than a year of work, MassDEP has proposed regulations that would require applicants to perform cumulative impact analysis prior to issuance of certain air emissions permits.  The regulations were required by the environmental justice provisions of the 2021 Climate Roadmap Act.

The requirement to perform a CIA will apply to any person seeking a comprehensive plan approval in or within one mile of any environmental justice community as well as to any project requiring a comprehensive plan approval that is within five miles of an EJ community,… More

EPA and the Corps Promulgate a “Durable” WOTUS Rule — Proving Only That There Is a Difference Between Hope and Expectation

Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.”  Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act? … More

Our Environmental Statutes Are Broken

Last week, the D.C. Circuit Court of Appeals granted a writ of mandamus to the Center for Biological Diversity, imposing a deadline on EPA to issue an “effects determination” concerning the potential impacts of the pesticide cyantraniliprole. This effects determination was supposed to be issued before EPA registered the pesticide.  Unfortunately, EPA did not do so.  Moreover, EPA acknowledged that it routinely registered pesticides without performing the required effects determination.… More

The Social Cost of Greenhouse Gas Emissions is About to Get Much More Expensive

Following an announcement at COP27 by President Biden, the EPA issued a supplemental proposal to reduce methane and other harmful emissions from new and existing sources in the oil and gas industry. In its regulatory impact analysis for the supplemental proposal, EPA included a sensitivity analysis detailing a revised methodology and new estimates for social cost of greenhouse gases (SC-GHGs), including carbon, methane,… More

CERCLA Has Never Been a “Polluter Pays” Statute

Environment and Energy Report (subscription required) had a story today about growing opposition to EPA’s proposal to list two PFAS compounds, PFOA and PFOS, as hazardous substances under CERCLA.  Here’s what really caught my eye about the opposition.  The National Association of Clean Water Agencies opposes the proposal.  They think it inconsistent with EPA’s historical implementation of CERCLA:

EPA’s proposed designations,… More

Some “Big Lifts” For Boston to Achieve Its Climate Goals

Earlier this Month, The Boston Foundation released its “Inaugural Boston Climate Progress Report.”  Suffice it to say, there’s a lot to do.  The Report identifies four “Big Lifts” necessary to attaining our climate goals.  It defines a Big Lift as:

a multidecade mega-project that seeks to improve the city to align with its climate and equity goals.

The four Big Lifts are:

  • Retrofitting the small building stock
  • Local energy planning for an electrified city
  • Building a resilient coastline through improved governance
  • Prioritizing reparative planning for Boston’s frontline neighborhoods

All of these are important and each is worth its own post. … More

Amendments to Massachusetts’ Clean Energy Standard Finalized, Accelerating Progress Towards Decarbonization of the State’s Electricity Sector

The Massachusetts Executive Office of Energy and Environmental Affairs (EEA) and Department of Environmental Protection (MassDEP) announced that proposed amendments to the state’s Clean Energy Standard (CES) were finalized earlier this month without substantive changes from draft language initially proposed by the agencies in April 2022.

The amendments are intended to accelerate progress towards decarbonization of the electricity sector and further ensure the state meets its goal of net zero emissions by 2050.… More

Can Cumulative Impact Analysis Improve Cost-Benefit Analysis?

As frequent readers know, I am a big fan of cost-benefit analysis.  The basic idea is that, when we make a decision to regulate at a certain level, we are by definition deciding that regulating to that level is “worth” the costs that the regulation will impose.  We might as well make such calculations explicitly. 

However, that doesn’t mean that CBA cannot consider the distributional impacts of federal regulations. … More

Might the WOTUS Saga Drag On For a While Longer?

The Supreme Court heard oral argument today in the Sackett case, in which the Sacketts are hoping that SCOTUS will finally issue a clear decision narrowing the scope of jurisdiction under the Clean Water Act.  I have stayed out of the SCOTUS prediction game because I find such speculation to be a waste of time.  I generally agree with the position of Roy Kent on Ted Lasso. … More

The Senate Ratifies the Kigali Amendment: Is Bipartisan Climate Action Possible?

Earlier this week, the Senate ratified the Kigali Amendment to the Montreal Protocol.  The amendment, which has already been ratified by most other countries, will result in the phase-out of hydrofluorocarbons, a group of potent greenhouse gases.  Substantively, this is a big deal.  Estimates are that it will prevent about ½ a degree Celsius in global warming.  That’s a meaningful impact. 

Politically,… More

EPA Proposes to List PFOA and PFOS as Hazardous Substances: What Could Possibly Go Wrong?

EPA announced today that it is proposing to list PFOA and PFAS as hazardous substances under CERCLA.  EPA appears to be sanguine about how the listing will play out in the real world.

EPA is focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. EPA will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.… More

Massachusetts to Require Disclosure of Energy Usage from Large Buildings

Lost amid the more high profile items in Massachusetts’ recently enacted Act Driving Clean Energy and Offshore Wind is a requirement that the Department of Energy Resources establish a program requiring large buildings across the Commonwealth to report energy usage on an annual basis.   The requirement goes into effect on July 1, 2024, but DOER has an additional year (until July 1, 2025) to draft implementing regulations and establish the parameters of the reporting program.  … More

Coming soon to Massachusetts cities and towns: all electric buildings

As we’ve discussed before, multiple cities and towns in the Commonwealth of Massachusetts have tried to ban fossil fuel hookups for new buildings by zoning or other ordinance over the past few years.  But in July 2020, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such ban that came across its desk as inconsistent with other state law.  As we noted then, in order for municipalities to restrict or ban fossil fuel connections,… More

Parts Per Trillion, We Hardly Knew Ye; Sell Hello to Parts Per Quadrillion

Just when we environmental old-timers were just getting used to talk about PFAS concentrations in the low parts per trillion range, EPA has moved us squarely into uncharted territory.  EPA has released new, interim, lifetime drinking water health advisories of 4 parts per quadrillion for PFOA and 20 parts per quadrillion for PFOS.  I’ll just note a couple of points: 

  • I think it sort of charming that EPA still states the health advisories in the units of parts per trillion (0.004 ppt for PFOA and 0.020 ppt for PFOS,…
  • More

The Battle Over California’s Authority to Set Vehicle Emission Standards Continues

EPA, States, and the auto industry are again ratcheting up the battle over California’s authority to set vehicle GHG and Zero Emission Vehicles program.

The Clean Air Act generally prohibits a state from adopting its own motor vehicle emission standards.  However, since its inception, the CAA granted California the authority to request a waiver of preemption from EPA for setting these emission standards.  Specifically:

(1)  The Administrator shall … waive application of this section to [California] …,… More

Noise Isn’t an Inconvenience; It’s a Pollutant

I used to think that noise was something that grumpy old men complained about.  Then I became a grumpy old man.  And now I realize that noise really is a pollutant.  And so I was pleased to see The Effects of Noise on Health.  Spoiler alert; the effects are not positive.  Noise has been linked to adverse health effects ranging from cardiovascular disease to impaired cognition. … More

More About NEPA Reform; It’s Not Just About Renewable Energy

Last month, Oakland Mayor Libby Schaaf wrote to the Federal Highway Administration, stating that Oakland “is suffering from a crippling housing and homelessness crisis.”  Furthermore, she complained that:

Addressing this crisis requires flexibility and creativity. … Federal environmental responsibilities, such as the National Environmental Policy Act (NEPA), can slow, discourage, or prevent these creative solutions. We must streamline the NEPA process as much as possible,… More

FERC Proposes to Reform Transmission Planning; It’s Not a Small Task

Late last month, FERC issued a notice of proposed rulemaking.  Its intent is to “remedy deficiencies in the Commission’s existing regional transmission planning and cost allocation requirements.”  In short, it’s time for a 21st Century grid that actually accommodates changes in how electricity is being generated.

I’m not sure I can improve much on FERC’s own summary of the NOPR:

the proposal would require public utility transmission providers to (1) conduct long-term regional transmission planning on a sufficiently forward-looking basis to meet transmission needs driven by changes in the resource mix and demand;… More

CEQ Finalizes Phase I NEPA Regulations: Undoing Trump’s Regulations Is One Thing; Modernizing NEPA Is Another

Earlier this week, the Council on Environmental Quality promulgated its Phase I rule amending the NEPA regulations.  The final rule largely implements the proposed rule, though with some minor changes.  Since the final rule so closely tracks the proposal, I won’t repeat the analysis that I already provided regarding these changes. 

I will briefly repeat my concern that Phase II of the NEPA regulations is going to be very important. … More

Microplastics in the Lungs: The Next Asbestos or Are We Just Catastrophizing?

Two developments this week got me thinking about how our government deals – or fails to deal – with risk.  First, EPA proposed to ban the manufacture (including import) of chrysotile asbestos.  EPA’s authority for doing so is the Toxic Substances Control Act which provides that:  

if EPA determines through a TSCA section 6(b) risk evaluation that a chemical substance presents an unreasonable risk of injury to health or the environment,… More

PM2.5 Emissions From Wildfires — No Longer So Exceptional!

Last week, the Clean Air Scientific Advisory Committee formally transmitted its recommendations to EPA Administrator Regan regarding the PM2.5 NAAQS.  Consistent with trade press reporting over the past few months, the majority of CASAC members recommended that the PM2.5 NAAQS be set between 8-10 ug/m3.  A minority recommended the range be set between 10-11 ug/m3.  I’d be surprised if the revised NAAQS is set above 10 ug/3. 

For me,… More

Boston Promulgates BERDO “Phase I” Regulations: Emissions Standards For Buildings Are Coming Soon

The Boston Air Pollution Control Commission has formally adopted its “Building Emissions Reduction and Disclosure Ordinance Phase 1 Regulations.”  The Phase 1 regulations are really all about the “disclosure” side of BERDO.  The “reduction” side will be addressed by the Phase 2 regulations, which at this point are scheduled to be completed by the winter of 2023. 

The final Phase 1 regulations largely track the draft released late last year. … More

The Social Cost of Carbon Lives! The Red States Have Nothing To Complain About

The Fifth Circuit has stayed an order blocking Biden administration use of the “Interim Estimates” of the social cost of greenhouse gases.  The Court did not leave much doubt that the administration will prevail on the merits. 

Issuance of a stay is based on criteria very similar to those regarding entry of an injunction.  The two most important are the likelihood of success on the merits and whether the person requesting the stay will suffer irreparable harm if a stay is not granted. … More

The D.C. Circuit Again Requires FERC to Consider the Environmental Impacts of Downstream Use of Gas: How Big a Deal Is It?

Last week, the District of Columbia Court of Appeals again rejected a FERC NEPA review for failure to assess the climate impacts resulting from the downstream use of natural gas supplied by a gas pipeline upgrade project approved by FERC.  The Court found that FERC was too quick to conclude that those downstream impacts could not reasonably be evaluated.

How big a deal is this? … More

The Impact of Exposure to Leaded Gasoline Was Horrific: Will We Say the Same in 2050 About the Impact of PM2.5 Exposure?

An article in the Proceedings of the National Academy of Sciences (login required) has documented the devastating impact caused by the use of leaded gasoline.  The study estimates that more than half of Americans alive in 2015 had been subject to unsafe blood lead levels as children.  The study further estimates that the impact of these elevated blood levels was a net loss of 824,097,690 IQ points as of 2015. … More

AIG Integrates Climate Into Its Investment and Underwriting Decisions: It’s Progress, But Is It Enough?

Last week, AIG significantly restricted its underwriting of and investment in fossil fuel projects.  Specifically, it announced the following actions:

  • With immediate effect, committed to no longer invest in or provide insurance for construction of any new coal-fired power plants, thermal coal mines or oil sands;
  • With immediate effect, committed to no longer invest in or underwrite new operation insurance risks of coal-fired power plants,…
  • More

In a Grim World, Even a Sliver of Positive Environmental News Is a Good Thing

Earlier this week, the United Nations Environment Programme (doesn’t everything just look better with British spelling!) announced that 175 nations had approved a resolution titled “End plastic pollution:  Towards an international legally binding instrument.”  If the ambition of the resolution wasn’t clear from the title, perhaps this quote from the UNEP press release will make it so.

Today marks a triumph by planet earth over single-use plastics.… More

It’s Still (Again) Necessary and Appropriate to Regulate Air Toxics From Power Plants

EPA has proposed to revoke the Trump administration finding in 2020 that it is not appropriate and necessary to regulate emissions of air toxics from coal- and oil-fired electric generating units.  Instead, EPA proposes to reaffirm its 2012 and 2016 determinations supporting such regulation. 

This is not surprising and should not be controversial.  It may seem odd that I’m citing to the Edison Electric Institute twice in one week in support of EPA regulatory authority,… More

What’s Up With the Supreme Court?

As everyone knows, the Supreme Court has teed up West Virginia v. EPA, which challenges EPA’s authority to regulate greenhouse gases, and Sackett v. EPA, which challenges EPA’s authority to define what constitutes a water of the United States.  Betting money does not favor EPA in either case.

I don’t have any inside authority on what will happen and I don’t really have thoughts that haven’t been expressed by others,… More

DOJ Doesn’t Know How to Declare Victory

According to Inside EPA (subscription required), the Department of Justice (and the Sierra Club) have opposed Ameren’s Missouri’s motion to allow it to close its Rush Island generating facility early, rather than install otherwise required pollution control equipment.  You may ask why DOJ is opposing the shutdown of a coal-fired power plant.  Like Tevye in A Fiddler on the Roof, I’ll tell you. 

I don’t know.… More

Foley Hoag to Host Webinar on New York’s Climate Plan

On January 12 and 13, Foley Hoag attorneys will lead a series of discussions about the significance of New York Climate Action Council’s recently-released draft Scoping Plan to the state’s continuing clean energy transformation. Richard Kauffman, Chairman of the New York State Energy Research and Development Authority, will provide keynote remarks. The draft Scoping Plan, which we discussed in a recent blog post, describes the market-based solutions and government actions that will be needed to achieve the ambitious climate goals set forth in the Climate Leadership and Community Protection Act.… More

BERDO Implementation Picks Up Speed — Better Get Ready

On Monday, Boston released a draft of the first phase of regulations intended to implement the amended BERDO ordinance signed by then-Mayor Janey in October

The first phase of the regulations is focused only on reporting issues.  It will address

  • Reporting Requirements
  • Third-Party Data Verification Requirements
  • Preservation of Records

The rationale for this narrow focus is that the City wants these regulations in place promptly,… More

New York Climate Action Council Approves Draft Scoping Plan to Achieve the Climate Leadership and Community Protection Act’s Greenhouse Gas Emissions Reductions

On December 20, 2021, the Climate Action Council (“Council”) approved the release for public comment of its draft Scoping Plan, which describes how New York can achieve the requirements of the Climate Leadership and Community Protection Act (“CLCPA” or “Climate Act”): 70% renewable electricity consumption by 2030, 100% zero-emission electricity consumption by 2040, a 40% reduction in statewide greenhouse gas (GHG) emissions by 2030, an 85% reduction in statewide GHG emissions by 2050,… More

New York Releases Much Awaited Roadmap for Deploying 10 Gigawatts of Distributed Solar by 2030

Can New York State satisfy nearly 30 percent of its electricity needs with solar projects less than five megawatts in size by the year 2030? In September of this year, Governor Hochul announced a framework to do just that, setting 10 gigawatts (GWs) of deployed distributed solar by 2030 as the goal, enough to power 700,000 New York homes – even more than the 2019 Climate Leadership and Community Protection Act’s (CLCPA) six-GW deployment requirement.… More

Is It Finally Lights Out for the Incandescent Light Bulb?

Last week, the Department of Energy released a proposed rule that would be the death knell for the incandescent light bulb.  The proposed rule would implement the so-called “backstop” provisions of the Energy Policy and Conservation Act, and impose an efficiency standard for general service lamps of 45 lumens per watt.  In short, incandescent bulbs operate at efficiencies well below 45 lm/W and thus could not meet the new standard.… More

EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked.

Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.”  Déjà vu all over again.

Under the proposal, the agencies:

are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies’ interpretation of the statutory limits on the scope of the “waters of the United States” and informed by Supreme Court case law.… More

Another Reminder How Difficult It’s Going to Be to Get to Net Zero

Yesterday, the Baker administration announced that the Transportation Climate Initiative is dead in Massachusetts, at least for now.  This is not a surprise, particularly after Governor Lamont’s statement that there is no political support for TCI in Connecticut.  It is difficult to implement a region-wide program to reduce carbon emissions from transportation fuels when only one state in the region is prepared to do so. 

The administration tried to put the best face on the failure of TCI,… More

Will We Ever Stop Overestimating the Cost of Complying with Environmental Regulations?

Earlier this week, Greenwire (subscription required) had an interesting story about the role that EPA’s estimate of the cost to comply with the Mercury and Air Toxics Standards rule played in the politics and judicial review of the rule.  It turned out that compliance costs were much less than originally estimated by EPA – let alone by industry.  Unfortunately, the $9.6 billion price tag originally put on the MATS rule lived on,… More

EPA Will Reconsider the Ozone NAAQS — What Is An Adequate Margin of Safety, Anyway?

On Friday, EPA announced that it was reconsidering its 2020 decision to leave the National Ambient Air Quality Standards for ozone unchanged.  The reconsideration will be based on the existing record.  The notice does not identify any specific perceived flaws in the 2020 decision.  However, EPA stated that it:

will reconsider the decision to retain the ozone NAAQS in a manner that adheres to rigorous standards of scientific integrity.… More

More Action By EPA on PFAS; The Bad News Keeps Piling Up.

The news about PFAS keeps piling up, and the trend is pretty clear – none of it is good for manufacturers and significant users.  There were two important items this week.

First, EPA published its human health toxicity assessment for “GenX chemicals,” also known as hexafluoropropylene oxide (“HFPO”) dimer acid (and don’t forget its ammonium salt!).  EPA has pegged HFPO’s toxicity at 7-100 times higher than that of other PFAS compounds for which assessments already exist,… More

The Trump 401 Certification Rule is Vacated — Does Anyone Actually Care If Section 401 Works?

Late last week, Judge William Alsup vacated the Trump-era EPA amendments to the regulations governing water quality certifications under section 401 of the Clean Water Act.  EPA had requested remand, and made clear that it disagreed with the amendments promulgated in 2020, but it opposed vacatur.

Whatever one’s view of the merits of the 2020 rule, from the court’s perspective, faced with EPA’s current statements indicating substantial disagreement with significant elements of the 2020 rule,… More

How To Straighten the Long and Winding Road that We Call NEPA

So CEQ has proposed to amend the NEPA regulations in order to eliminate some of the changes made by the Trump Administration in 2020.  Important changes include:

  • explicit consideration of indirect impacts
  • renewed emphasis on consideration of cumulative impacts
  • elimination of the requirement that there be “a reasonably close causal relationship” between a proposed action and a potential impact,…
  • More

There’s No Doubt What EPA Staff Thinks Should Be the Result of EPA’s Reconsideration of the PM2.5 NAAQS

Late last week, EPA released an external review draft of the “Supplement to the 2019 Integrated Science Assessment for Particulate Matter.”  For those of you who don’t recall, the original Integrated Science Assessment was the report by EPA scientists that very clearly called for a decrease in the National Ambient Air Quality Standard for PM2.5.  It was criticized by the Chair of the Clean Air Act Science Advisory Committee and ignored by Administrator Wheeler,… More

Boston Regulates Building GHG Emissions: The Next Few Years Will Be Very Interesting

Last week, the Boston City Council approved amendments to the Building Energy Reporting and Disclosure Ordinance.  The changes are being referred to as “BERDO 2.0”, which almost understates the scope of the revisions.  As indicated by its name, since its original enactment, BERDO only dealt with reporting and disclosure.  Now, however, Boston will be imposing limits on GHG emissions from large buildings.

The limits will first be effective in 2025,… More

Environmental Impact Review and Environmental Justice: How Hard Will It Be To Merge the Two?

Environmental justice is clearly an idea whose time has – finally – come.  The need to find the intersection between the search for racial justice and efforts to save the planet is undeniable.  If we get it right, we’ll be at least partially solving two problems at once.  First, mobilizing underserved communities in the fight against climate change and other environmental problems increases the number of voices arguing for aggressive action,… More

Implementing Maui Remains a Case-by-Case Affair, at Least for Now

Last week, EPA withdrew guidance issued in the waning days of the Trump Administration interpreting the Supreme Court decision in County of Maui v. Hawaii Wildlife FundAs the masochists who follow the torturous case law we call Clean Water Act jurisprudence are well aware, SCOTUS ruled in Maui that discharges from point sources to groundwater that are the “functional equivalent” of a direct discharge to surface water are required to obtain NPDES permits.… More

The Trump WOTUS Rule Is Vacated; Now We Know What’s Next

Last week, I reported that Judge Rosemary Marquez had vacated the Trump administration’s Navigable Waters Protection Rule.  I also asked “what’s next”?  EPA and the Army Corps have now answered that question, at least for the short run.  In a brief announcement on EPA’s web page, EPA stated that:

the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.… More

It’s Important to Acknowledge Good News — The End of Leaded Gasoline

As climate change rightly has dominated recent discussions of environmental policy, it’s been easy to forget how much progress has been made in the past fifty years.  I was reminded of the extent of that progress by the story in Bloomberg (subscription required) that the last refinery in the entire world to produce leaded gasoline has ceased operations.  There’s no doubt that that’s something to be celebrated.

I recently did a post asking whether exposure to particulate matter affects cognitive abilities. … More

The Trump WOTUS Rule Is Vacated; What’s Next?

Yesterday, Judge Rosemary Marquez vacated the Navigable Waters Protection Rule, the misnomer also known as the Trump WOTUS rule.  In response to this citizens’ suit challenging NWPR, the Biden EPA and Army Corps of Engineers moved to remand the rule to the agencies, since they had already announced an intent to revisit the definition of WOTUS.  However, for reasons that I have never understood, the agencies sought remand without vacatur,… More

NSR Enforcement Lives On (For Now) — A Split Decision for Ameren

The 8th Circuit Court of Appeals has largely affirmed a District Court order finding that Ameren Missouri violated the NSR provisions of the Clean Air Act in making major modifications to its Rush Island facility.  The Appeals Court did reject the District Court’s requirement that Ameren Missouri make improvements at its nearby Labadie facility that was not in violation of the CAA.

I have three thoughts about the decision.… More

Does Pollution Make You Dumber? (And Other Questions About Exposure to Particulate Matter.)

Most people other than Andrew Wheeler and the Trump Administration Clean Air Science Advisory Committee know that exposure even to low levels of PM2.5 causes increased morbidity and mortality.  And now comes evidence that exposure to PM2.5 may adversely impact cognitive capacity as well.  If the evidence is correct, then the externalities created by activities that release PM2.5 are likely much more significant than we had realized,… More

Can “Guidance” Ever Be Binding?

Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits.  The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act.

May I ask my legal colleagues to wrap their heads around the concept of “nonbinding guidance?”  Doesn’t the existence of “nonbinding guidance” imply the existing of “binding guidance?”  If not,… More

FERC Cannot Avoid the Social Cost of Carbon By Arguing That It is Not Universally Accepted

On August 3, the District of Columbia Court of Appeals held that FERC could not avoid use of the social cost of carbon in assessing the impacts of natural gas projects by arguing that “there is no universally accepted methodology.”  Given the growing recognition of the significant role FERC is going to have in combatting climate change, it’s an important decision. 

FERC acknowledged that construction and operation of the projects under review would “contribute incrementally to future climate change impacts.”  However,… More

Maui Needs a NPDES Permit; What’s Next for WOTUS?

Last week, District Judge Susan Mollway ruled that the County of Maui must obtain a NPDES permit for discharges to groundwater by the Lahaina Wastewater Reclamation Facility.  It is the first trial court decision applying the factors identified by Justice Breyer in the SCOTUS Maui decision. 

Judge Mollway found the most important factors to be what she considered to be the relative short distance from the discharge to the surface water (½ mile) and the relatively short time between the groundwater discharge and the surface water discharge (as little as 84 days and,… More

At What Level of Government Are We Going to Regulate Climate Change? (Hint — It Is a Global Problem.)

Last week, Judge Yvonne Gonzalez Rogers ruled that the Berkeley ordinance essentially banning use of natural gas in new construction was not preempted by the Energy Policy and Conservation Act.  I’m not here to opine on the legal merits of the decision.  I will note note that the Judge’s reliance on textual analysis and the asserted federalist bent of SCOTUS’s conservative wing might give this opinion more life than one would otherwise expect – though I’ll also note that the conservative wing’s federalist proclivities often seem to turn on whether they agree with the underlying policy at issue. … More

EPA Withdrawal of Its Proposed Veto of a 404 Permit Is Reviewable — This Should Not Be Earth-shattering News

Last week, the 9th Circuit Court of Appeals ruled that EPA’s decision to withdraw its proposed veto of the Army Corps’ Section 404 permit for the Pebble Mine project in Bristol Bay, Alaska, was subject to judicial review.  Although there was a dissent and the majority opinion was 39 pages, I don’t think that the case should have been so hard.

The Court noted the “strong presumption” that final agency action is subject to judicial review. … More

TCI Update: Final Model Rule Addresses EJ, but Political Will May Be Lacking

On June 10, 2021, the Transportation Climate Initiative Program (TCI-P) states released a final model rule creating a regional cap-and-trade-program to reduce carbon emissions from the transportation sector. We wrote about the draft model rule and its implementation challenges when it was released at the beginning of March. Now, after a two-month stakeholder engagement process, the jurisdictions working to implement the program ask stakeholders to weigh in on the guidance documents,… More

Criticizing WOTUS Is Like Shooting Fish in a Barrel

On Wednesday, EPA and the Army Corps of Engineers announced that they plan to revise the definition of “Waters of the United States”.  Simultaneously, DOJ moved to remand the Navigable Waters Protection Rule, in a challenge to the Trump-era rule brought by the Conservation Law Foundation.  Can you say “déjà vu all over again”?

This is such a target-rich environment that I almost don’t know where to begin – but I’ll try.… More

Incidental Take Permits Under the Migratory Bird Treat Act — Why Is This So Difficult?

Last week, the Fish and Wildlife Service issued a proposed rule that would revoke the rule promulgated by the Trump Administration in January 2021 and return to the prior status quo, in which the incidental take of birds subject to the Migratory Bird Treaty Act constituted a violation of the Act.  I’m not taking a position on the proposal.  I don’t think it’s as clear-cut as my friends in the environmental movement seem to believe. … More

How Are We Really Going to Get to Net Zero?

Late last month, the Washington Legislature passed the “Climate Commitment Act”, a piece of sweeping climate legislation that includes, among other provisions, an economy-wide cap-and-trade system.  Washington was not far behind Massachusetts, which enacted its “next generation roadmap” bill in late March.  This friendly competition among states to move towards net zero economies as aggressively as possible is certainly a good thing.… More

The Other Shoe Drops — EPA Formally Announces Its Reconsideration of the Withdrawal of the California Preemption Waiver

I noted in yesterday’s post about the NHTSA proposal to withdraw the SAFE I Rule that EPA was expected to follow the NHTSA action by restoring the Clean Air Act Section 209 waiver for California’s Advanced Clean Car program. The ink was barely dry on the post when EPA released a Notice that was considering doing just that.

I have always thought that EPA’s waiver withdrawal stood on very shaky ground – shakier even than the NHTSA preemption argument made in the SAFE I rule. … More

The SAFE Rule Is On the Way Out — I Don’t Feel Any Less Safe

Last week, the National Highway Traffic Safety Administration proposed to withdraw Part I of the Trump Administration’s SAFE Rule, in which EPA had concluded that California’s regulation of motor vehicle GHG emissions was preempted by the Energy Policy and Conservation Act.  It’s not a surprise, given that Executive Order 13990 specifically directed NHTSA to revisit the SAFE I Rule. 

It is interesting, if not ironic,… More

The Biden Administration’s Undoing Project Continues — A Flawed Interior Interpretation is Jettisoned

On Friday, the Principal Deputy Solicitor at the Department of Interior issued a memorandum on how DOI should balance the criteria in the Outer Continental Shelf Lands Act in issuing leases for offshore wind.  The new memorandum replaces one issued by the Trump Administration following the November election.

The Trump Administration memorandum, which could have simply been titled the “We Hate Offshore Wind Memorandum,” basically treated each of the criteria in the statute as vetoes,… More

Carbon Pricing — Is It the Zombie Climate Policy?

At a press briefing in India yesterday, John Kerry, President Biden’s Special Presidential Envoy for Climate was asked by an Indian journalist about carbon pricing.  Here’s part of his response:

President Biden believes that at some point in time we need to find out a way to have a price on carbon that’s effective.  He hasn’t decided or made an announcement about it,… More

States Really, Really, Must Act on Water Quality Certification Applications Within One Year

The saga of judicial efforts to enforce the one-year limit on state review of applications for water quality certifications under Section 401 of the Clean Water Act shows no sign of reaching a conclusion.

First, in Hoopa Valley Tribe v. FERC, the D.C. Circuit held that an agreement between the applicant and the state pursuant to which the applicant repeatedly withdrew and resubmitted its 401 application could not escape the statutory time limit on state review.… More

The Massachusetts Climate Bill is Very Much “Not Dead”

In January, when Governor Baker vetoed the Legislature’s effort to go big on climate, my colleague Zach Gerson made clear that the bill was not even “mostly dead.”  I am pleased to say that Zach’s diagnosis was correct.  The climate bill is very much alive.

Last week, the Legislature passed a new version of the bill, which adopted most of the Governor’s technical suggestions and almost none of his substantive changes. … More

FERC Considers GHG Emissions in a Gas Pipeline Review — Everyone Is Unhappy

According to E&E News (subscription required), FERC yesterday, for the first time, assessed the impacts of a gas pipeline’s downstream GHG emissions.  (As of this writing, the decision is not yet available on FERC’s web site.)

Former chair James Danly was unhappy, calling the decision “legally infirm.”  I question Commissioner’s judgment on this one.

Neil Chatterjee provided the Republican vote in favor, saying that he made a pragmatic decision,… More

The Transportation Climate Initiative Marches Forward; It’s Not Going to Be Easy.

On March 1, the Transportation Climate Initiative jurisdictions released a draft “model rule” that would provide a template for individual state rules governing the operation of the TCI Program.  Although only three states and the District of Columbia committed in December 2020 to implement TCI-P, the announcement on Monday indicated that the model rule “was developed by twelve” TCI jurisdictions.”  I guess that eight states like the model rule – just not enough at this point to commit to implementing it.… More

More on the Social Cost of Carbon — Are We Doing It All Wrong?

Last month, I posted about the Biden administration’s effort to develop a new estimate of the social cost of carbon.  The EO requires a new interim SCC within 30 days and a new longer-term SCC by January 2022.  Earlier this week, Joseph Stiglitz and Nicholas Stern – it doesn’t get more impressive than a Nobel prize winner and an actual Lord – released a National Bureau of Economic Research Working Paper (non-academics can download up to three papers free per year) in which they argue that,… More

The Trump Administration Suffers Yet One More Judicial Defeat; The “Secret Science” Rule Is Vacated

Last month, I noted that the Trump administration had suffered “one final judicial defeat” – the rejection of its Affordable Clean Energy Rule.  Of course, I spoke too soon.  Last week, Judge Brian Morris rejected EPA’s rule “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” – also known as the “Secret Science Rule.” 

The Secret Science Rule was promulgated on January 6,… More

It’s Fair to Say At This Point That Climate Change Is a Priority For This Administration

Yesterday, President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad.  It’s even more comprehensive than last week’s order.  Indeed, my main reaction to the order isn’t to any of the specific provisions.  It’s one simple realization – he really means it.  And I think that’s the point.  There is no question at this point that President Joseph Robinette Biden,… More

It’s the Externalities, Stupid — Climate Edition

Among the important provisions of President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis is the requirement to review and revise estimates of the social cost of carbon (and nitrous oxide and methane).  The order establishes a working group, co-chaired by the Chair of the Council of Economic Advisers, the Director of OMB, and the Director of the Office of Science and Technology Policy. … More

President Biden Pulls the Plug on Keystone XL — Let’s Make Sure It Sets the Right Precedent

Yesterday, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  There’s a lot in it, so I think I’m going to have to take it in blog-sized bites.  Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.

Why start here?… More

In Case You Were Wondering, EPA’s PM2.5 Decision Really Was Horrible

Last month, I posted that EPA’s decision to retain the current PM2.5 NAAQS of 12 ug/m3 was the single worst decision by Trump’s EPA.  Since then, I have not received any comments suggesting that my ranking was incorrect.  In case anyone was still in doubt, Environmental Research recently released an on-line Pre-proof of A National Difference in Differences Analysis of the Effect of PM2.5 on Annual Death Rates. … More

Massachusetts Starts 2021 With a Bang on Climate

Over the past four years, while the Trump Administration did everything possible to ignore climate change, optimists continued to find progress at the state level.  And while President-elect Biden has put together an A-team on climate, Massachusetts, at least, seems determined to show that the states will continue to lead – even if they now have a partner at the federal level.

Two weeks ago,… More

Massachusetts Releases Its 2050 Decarbonization Roadmap — It’s Going to Be Quite a Trip

Yesterday, Massachusetts released its “2050 Decarbonization Roadmap.”  I’m tempted to call it a tour de force.  At the very least, it’s jam-packed with important issues.  One of the most valuable aspects of the Roadmap is its discussion of the potential tradeoffs among the different paths towards a decarbonized economy.  Acknowledging that the Roadmap contains much more good stuff than can be summarized in a single post,… More

The Transportation Climate Initiative Gets Off the Ground: Kinda, Sorta, A Little

Today, three of the states participating in the Transportation Climate Initiative – Massachusetts, Connecticut, and Rhode Island – and the District of Columbia released a Memorandum of Understanding describing a “cap and invest” program intended to reduce carbon emissions from fossil fuels and raise money “to accelerate the transition to an equitable, safe, and affordable low-carbon transportation sector.” Here are the big takeaways:

  • The four participating states are eight short of full participation among the TCI states. …
  • More

EPA Finalizes Decision to Retain the Existing PM2.5 NAAQS — Single Worst Environmental Decision of the Trump Administration?

Yesterday, EPA finalized its decision to retain the existing PM2.5 NAAQS of 12 ug/m3, rejecting substantial scientific evidence that PM2.5 causes significant harm at concentrations below 12 ug/m3.  In fact, as noted in one of my prior posts on this subject, an article in the New England Journal of Medicine estimated that exposure to PM2.5 at concentrations below 12 ug/m3 causes more than 10,000 deaths annually. … More

Who Gets To Decide What is a Major Source That Requires a Permit? That’s a Fine Question

The recent decision by the 8th Circuit that the Coyote Creek Mining Company did not require a major source permit under the Clean Air Act is both fascinating and important.  The question on the merits was whether CCMC had to include its fugitive emissions in determining its potential to emit.  Such emissions are normally excluded, but are included if they are part of a “coal processing plant.”

The Court concluded that the regulations are ambiguous and that EPA guidance did not resolve the issue. … More

Judge Skavdahl Doth Protest Too Much — And Wrongly Vacates BLM’s Methane Rule

Last week, Judge Scott Skavdahl vacated BLM’s 2016 methane Waste Prevention Rule.  The Judge spends 10 pages documenting the “loopty-loops” of the litigation surrounding the 2016 Rule and the Trump administration’s efforts to rescind the rule.  Here, I’m with him.  It’s difficult to review the tangled process of judicial review of this rule without being embarrassed for our judicial system.

Judge Skavdahl then spent 47 pages on the merits. … More

Regulating Guidance As Though It Were Regulation

I’ve been complaining about guidance for most of the 33 years I’ve been in practice.  The summary of the issue provided in Appalachian Power v. EPA in 2000 still has not been bettered:

Congress passes a broadly worded statute.  The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like.  Then as years pass, the agency issues circulars or guidance or memoranda,… More

The New NEPA Regulations Were a “Political Act.” Is That Enough to Invalidate Them?

Last week, Judge James Jones declined to issue a preliminary injunction that would have prevented implementation of the Trump Administration’s NEPA revisions.  Judge Jones’s explanation was fairly sparse.  He merely noted that the plaintiffs had not made the required “clear showing” that they are likely to succeed on the merits, though he did indicate that testimony, including expert opinion, is likely to be necessary.

I can’t say I’m shocked,… More

EPA Rolls Back Obama Methane Rules; I Coin a Phrase: “Regulatory Whiplash”

Last week, EPA finalized its rollback of Obama administration regulations governing methane emissions from the oil and gas industry.  The move is not exactly a surprise.  Regarding the purpose of the rollback, I stand by my take on the proposed regulations.  This regulation was promulgated for two purposes.  First, it provides generic red meat to those who think government regulation is inherently a bad thing. … More

Did the 5th Circuit Just Make Standing Much More Difficult?

Last week, the 5th Circuit Court of Appeals vacated a $20M penalty imposed on ExxonMobil for Clean Air Act violations at its Baytown facility, remanding the case for a more particularized review by the District Court regarding whether the plaintiffs have demonstrated that they have standing with respect to all of the violations committed by ExxonMobil.  The Court held that it is not enough to show that each of the claims in the complaint are traceable to ExxonMobil’s conduct. … More

It’s Not Impossible for EPA to Comply with the Good Neighbor Provisions of the Clean Air Act

On Tuesday, Judge John Koeltl ordered EPA to issue a final rule addressing its obligations under the Good Neighbor provisions of the Clean Air Act by no later than March 15, 2021. Two aspects of the decision are worth note.

The big issue in the case, once the Judge disposed of EPA’s jurisdictional arguments, was whether it is impossible for EPA to issue a final rule by the plaintiffs’ suggested date. … More

Governor Jim Justice and the Progress of Man

On Monday, Judge David Faber found Bluestone Coal Corporation liable for 1,904 days of violations of its discharge permit at the Red Fox Surface Mine.  All of the violations related to excessive discharges of selenium.  Bluestone’s defense, rejected for a second time by Judge Faber, was that the existence of a consent decree precluded the separate action for enforcement of the permit.  However, the permit and its specific discharge limit for selenium only came into effect after the entry of the consent decree.… More

The New NEPA Rules Are Final: Still Giving Regulatory Reform a Bad Name

CEQ has finalized revisions to the NEPA regulations.  I don’t have too much to add to my post on the proposed rule back in January.  NEPA needs reform.  These regulations, however, are not the reform NEPA needs.

The rule largely tracks the proposed rule.  It is worth noting, however, that, contrary to this administration’s frequently cavalier attitude toward judicial review, they have made a few tweaks to increase the likelihood that the rule will survive review. … More

What is the Burden on States Petitioning EPA Under the Good Neighbor Provisions of the Clean Air Act?

Yesterday, the D.C.. Circuit Court of Appeals granted New York’s petition appealing EPA’s rejection of New York’s request under Section 126 of the Clean Air Act to require emissions reductions from upwind states alleged to be contributing to New York’s noncompliance with the ozone NAAQS.  The Court found that:

The EPA offered insufficient reasoning for the convoluted and seemingly unworkable showing it demanded of New York’s petition.… More

Dakota Access Must Shut Down. Is It a Harbinger?

I don’t like to speculate, so I won’t say that July 6, 2020, was the beginning of the end of fossil fuel infrastructure in the United States.  I will say, with apologies to Judith Viorst, that it was a Terrible, Horrible, No Good, Very Bad Day. 

First came the news that even a recent Supreme Court win wasn’t enough to save the Atlantic Coast pipeline. … More

Will Evidence of Causality Be Enough to Change EPA’s Mind About the PM2.5 Standard?

There have been numerous studies that support a decrease in the current PM2.5 annual standard of 12 ug/m3.  EPA has nonetheless proposed to retain the current standard on the basis that there is too much uncertainty regarding whether those studies provide a basis for concluding that PM2.5 concentrations below the standard cause increased mortality.  As I have previously noted, the statutory provision requires that NAAQS be set with an “adequate margin of safety.”  That would seem to require EPA to resolve such uncertainty in favor of a more stringent standard.… More

Woe Is WOTUS, Redux

Sometimes, history repeats itself.  Sometimes, that is not a good thing.

After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums.  The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts. … More

Particulate Matter Experts Still Think that the PM2.5 NAAQS Should Be Lowered. Will The Courts Defer to Them Or to EPA?

Last week, the New England Journal of Medicine published The Need for a Tighter Particulate-Matter Air-Quality Standard, written by the Independent Particulate Matter Review Panel.  For those who don’t remember, the Review Panel used to be a sub-committee of EPA’s Clean Air Science Advisory Committee, until EPA Administrator Wheeler decided that CASAC did not need the specific advice that the Review Panel had to offer.… More

EPA’s New Cost-Benefit Rule — Are Both Sides Misrepresenting What It Says?

Last week, EPA released its proposed rule regarding Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking ProcessAs much as I hate to give aid and comfort to this Administration, I have to say that the rule does not herald the end of western civilization.  The biggest controversy surrounding the rule is its impact on consideration of “co-benefits”. … More

Sage Grouse Habitat Still Gets Priority in BLM Leasing Decisions

Last week, Chief Judge Brian Morris of the Federal District Court for the District of Montana vacated an “Instruction Memorandum” issued by BLM in 2018 – and also vacated numerous oil and gas leases issued in reliance on the 2018 IM.  The 2018 IM changed the way BLM interpreted land management plans issued by BLM in 2015 in order to preserve sage grouse habitat, and avoid the necessity for listing the sage grouse as endangered under the ESA.… More

Has President Trump Just Limited Enforcement To Willful Violations?

On Tuesday, President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery.  I’ll leave to others a discussion of the provisions telling agencies to look for more regulations to roll back.  I’m in general agreement with commenters who have said that those provisions don’t add much to Trump’s prior deregulatory efforts and are likely to face mostly the same reception in the courts as prior efforts.… More

It’s the Life Cycle Impacts, Stupid

It is generally understood that the shift from coal to gas has helped, at least in the short run, to reduce emissions of greenhouse gases.  It is certainly true that combustion of natural gas releases less CO2 per unit of energy than combustion of coal.  Unfortunately, that’s not the entire answer.  A recent study published in Science Advances indicates that 3.7% of natural gas produced in the Permian Basin ends up in the atmosphere.… More

SCOTUS Gets One Right: Discharges To Groundwater Require Permits, But Only If They Are the Functional Equivalent of a Direct Discharge to Surface Water

The Supreme Court ruled today that discharges to groundwater are subject to the permitting requirements of the Clean Water Act, but only where the “discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”

I don’t often say this about Supreme Court environmental decisions, but I think that the Court got it exactly right.

The apparent dilemma for the Court was that,… More

EPA’s MACT Rule; Some Benefits Are More Equal Than Others

Last week, EPA formally revised the cost-benefit analysis for its rule limiting the emissions of hazardous air pollutants from coal-fired power plants.  The rule jettisons consideration of so-called “co-benefits,” in this case, the benefits from the reduction in emissions of PM2.5 that result from limits on mercury emissions.  The very idea of excluding consideration of co-benefits is just plain incoherent.

I’ve spent my career defending cost-benefit analysis to many of my environmentalist friends. … More

New SMART Program Regulations Double Size of SMART Program to 3,200 MW, Impose Storage Requirement and Make Community Solar and Other Changes

by Adam Wade and Ethan Severance

On April 14, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed emergency regulations for the Solar Massachusetts Renewable Target (“SMART”) Program. A redline showing the additions to 225 CMR 20 is available here: MA DOER 225 CMR 20 Emergency Regulations 4.15.20. As emergency regulations, these changes went into effect Wednesday, April 16, 2020. DOER plans to hold a virtual public hearing on the new regulations on May 22,… More

EPA Remains the “Anti-Environmental Protection Agency”; Wheeler Refuses to Tighten the PM 2.5 NAAQS

After more than three years of ignoring science whenever it does not support this Administration’s preferred outcomes, the issue of the future of science in environmental regulation has now been well and truly joined.  Yesterday, Administrator Wheeler, disagreeing with the recommendation of EPA’s own staff, announced that EPA is proposing to retain the current National Ambient Air Quality Standard for PM2.5 of 12 ug/m3, notwithstanding substantial evidence that PM2.5 poses significant risks even below 10 ug/m3. … More

MassDEP Issues Guidance on Performing Response Actions During COVID-19

Just a straightforward informational post.  MassDEP has issued a concise, helpful, guidance on performing response actions during COVID-19.  Here are the highlights:

  • All release notifications are still required within MCP deadlines.
  • MassDEP is still taking oral notice of Immediate Response Actions and issuing oral approvals.  It is still reviewing written IRA plans.  If MassDEP does not respond to a within plan 21 days,…
  • More

If You Thought That COVID-19 Was Bad, Try It Mixed With Some PM2.5!

Last week, I discussed the Administration’s guidance concerning the exercise of its enforcement discretion during the COVID-19 pandemic. Now comes evidence that the guidance may actually be self-defeating.  While the administration is – understandably – trying to cut regulated industries some slack while they are trying to deal with COVID-19, it turns out that exposure to PM2.5 has a significant impact on the COVID-19 death rate.… More

EPA and NHTSA Release the SAFE Rule — Don’t You Feel Safer?

EPA and the NHTSA have finally released Part 2 of the Safer Affordable Fuel-Efficient (SAFE) Vehicle Rule.  Most readers will know that Part 1 of the SAFE rule revoked California’s waiver authorizing it to impose more stringent mileage standards.  Part 2 substantially rolls back the federal fuel-efficiency standards promulgated by the Obama Administration.

I referred to George Orwell on this blog as recently as January,… More

Balancing Environmental Protection and Public Health in the time of COVID-19 (and after)

Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic.  The result is not surprising and, one assumes, appropriate in the circumstances.

It does highlight, though,… More

California’s Agreement With Quebec Is Not a Treaty — At Least For Now

Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Treaty Clause or the Compact Clause.  These are not parts of the Constitution that are normally a focus of environmental law classes, so take what follows with an appropriately sized grain of salt.… More

It’s the Energy Markets, Stupid (And Energy Markets Are Complex)

This week, the Massachusetts Attorney General’s office released a white paper documenting the results of a symposium convened last fall to discuss how electric markets should be organized to manage the transition to a “low / no-carbon future.”  Policy wonks, such as myself, will find it fascinating reading, though it is moderately dense stuff.

Seriously, it is important to acknowledge that these issues are as complex as they are important. … More

Federalism and the Regulation of PFAS

There has been much angst at the state level that EPA has not moved faster to develop drinking water or cleanup standards for PFAS.  One of the states affected by the pace of EPA’s regulatory efforts is New Hampshire.  Taking up the mantle, New Hampshire enacted legislation requiring the Department of Environmental Services to take a variety of actions with respect to PFAS.  One required action is the development of a plan for the establishment of surface water quality standards for four PFAS compounds.… More

The Science Advisory Board Lives!

The attack on science by this administration is not news at this point.  Part of that attack has been to increase the number of industry scientists on EPA’s Science Advisory Board.  I have no objection per se to additional industry representation on the SAB; a lot of good science gets done by industry.  There are dangers, though.  When Tony Cox, who is neither a statistician nor an epidemiologist,… More

Can Market-based Approaches Help to Clean Up the Great Lakes? Why the Heck Not?

Earlier this week, EPA announced grants for the development of market-based programs to address water quality problems in the Great Lakes, as part of the Great Lakes Restoration Initiative.  I’ve spent more than a little time criticizing EPA’s actions under this Administration.  Having spent the better part of 30 years pushing for market-based approaches to environmental regulation, it has been more than a little distressing to have this president give regulatory reform such a bad name.… More

Evidence That Low Exposures to Particulate Matter Pose Health Risks Continues to Accumulate — Will Administrator Wheeler Listen?

EPA’s Office of Air Quality Planning and Standards has issued its final “Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter.”  The Policy Assessment comes with the standard disclaimer that its “findings and conclusions are those of the authors and do not necessarily reflect the views of EPA.”  Sadly, truer words were never spoken.

Those following this issue know that,… More

Being Endangered Is Not the Same as Being Threatened

Late last month, Judge Emmet Sullivan of the Federal District Court for the District of Columbia, remanded to the Fish and Wildlife Service its decision to list the northern long-eared bat as threatened. The decision is lengthy and complicated, but its crux is not.

As Judge Sullivan noted, under the ESA, a species is “endangered” if it “is in danger of extinction throughout all or a significant portion of its range.”  A species is “threatened” if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. … More

President Trump’s NEPA Reform Is the Opposite of Nixon in China

Ever since President Nixon visited China, significantly contributing to a thawing of the Cold War, the phrase “Nixon in China” has referred to any situation where a leader makes a policy move that would have been more expected by a leader of the opposition party.  The notion is that such surprising acts of statesmanship can unlock political gridlock.

Unfortunately, Nixon in China moments are notable precisely because they are so rare. … More

The Science Advisory Board Agrees With Me!

At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration’s proposed revision to the WOTUS rule.  The SAB’s conclusions were not ambiguous.

The SAB finds that the proposed revised definition of WOTUS decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining “the chemical,… More

Cooperative Federalism Still Requires Two To Tango

Earlier this month, the 9th Circuit Court of Appeals held that a long-term failure by a state to submit to EPA a TMDL for an impaired water can constitute a “constructive submission” of no TMDL, triggering an obligation on EPA’s part to reject the constructive submission and, in turn, to issue the requisite TMDL itself.

The logic of the decision is straightforward.  The Clean Water Act unambiguously imposes a non-discretionary duty on states to submit TMDLs for waters on the so-called “303(d) list.”  In turn,… More

A Carbon Fee on Transportation Fuels Is Not Coming Your Way Any Time Soon If You Live In New Hampshire

Yesterday, I noted with enthusiasm the announcement that the states participating in the Transportation and Climate Initiative had released a new draft Memorandum of Understanding outlining the framework of what “RGGI for cars” might look like.  I also provided a cautionary note that the politics of TCI would be tricky and that imposing a carbon fee sufficient to attain the goal of funding an effective, low-carbon, transportation system for New England in the 21st Century might prove difficult. … More

Coming Your Way (Relatively) Soon: A Carbon Fee on Transportation Fuels

The 12 states and the District of Columbia participating in the Transportation and Climate Initiative announced today the release of a new draft Memorandum of Understanding that outlines the framework of what they are calling a cap and invest program for cars and trucks.  In short, it will require persons selling gasoline and on-road diesel at the wholesale level to hold allowances – which will be auctioned – in order to continue to sell such on-road fuels. … More

It’s Not Going to Be Easy to Be Green

The New York Citizens Budget Commission has released a report regarding the state’s ability to meet its ambitious GHG reduction targets.  It’s sobering reading.  The CBC states that it is “uncertain” whether New York can meet those goals.  It identifies four reasons:

Immense scaling up of renewable generation capacity is necessary and is likely infeasible by 2030.

The focus on building renewable resources,… More

EPA Revises Its Policy on “Ambient Air” — Is It Nefarious or Common Sense?

EPA Administrator Wheeler has distributed a “Revised Policy on Exclusions from ‘Ambient Air’”.  Here’s the short version.  EPA has long defined “ambient air” as outside air “to which the general public has access.”

EPA’s policy has been to require the regulated community to satisfy two criteria to invoke an exclusion.  First, the regulated entity must have legal control over the land. … More

A Court Enjoins Implementation of NH DES PFAS Regulations — Almost!

Last week, Judge Richard McNamara ruled that the plaintiffs were likely to succeed in their challenge to the very stringent standards for PFAS in drinking water promulgated by the New Hampshire Department of Environmental Services.  However, given the importance of the issues, the Court stayed its injunction until December 31, to give the parties time to appeal to the NH Supreme Court.

The Court ruled against the plaintiffs’ claims that the regulations constituted an unfunded mandate and that DES failed to give fair notice and an opportunity to comment on the regulations (DES’s final regulations were substantially more stringent than its proposed regulations). … More

More Evidence that Chevron Is Not a Liberal Plot

Yesterday, Judge William Young ruled that discharges to groundwater are not subject to Clean Water Act jurisdiction, even if they ultimately reach surface waters that are unambiguously waters of the United States.  He did not wade into the murky waters, as it were, of the Maui case or any of the various judicial theories for or against jurisdiction.  Instead, he took a simpler path.… More

Is It a Sin to Cause Environmental Degradation? Will Calling It a Sin Be Helpful?

Last week, Pope Francis announced that the Catholic Church was considering introducing into the Catechism “the sin against ecology, the ecological sin against the common home.”

My immediate question on seeing this statement was whether it would have any impact on the fight against climate change or other environmental degradation.  After all, the Vatican estimates that there are more than 1.2 billion Catholics world-wide. … More

Sage Grouse Protections Restored; Another Hasty Regulatory Rollback Is Rolled Back.

Last week, Federal District Court Judge B. Lynn Winmill granted a preliminary injunction to various NGOs, barring the Bureau of Land Management from implementing amendments BLM had made in 2019 to protection plans for the sage grouse promulgated by BLM in 2015.  It makes compelling reading.  In 29 pages, it pretty much summarizes everything the Trump administration has done in the environmental arena, and how courts have reacted.… More

DOE Must Promulgate Energy Efficiency Standards Finalized By the Obama Administration

Last week, the 9th Circuit Court of Appeals affirmed a District Court ruling requiring the Department of Energy to publish in the Federal Register four rules finalized by the Obama administration, but not previously published.

The Trump administration DOE tried to take advantage of DOE’s “error-correction rule”, which gives DOE time to fix mistakes in its rules before they are published in the Federal Register.

The problem with DOE’s argument is that the error-correction rule is clear that error correction is a ministerial task. … More

Particulate Matter Has Not Clouded My Crystal Ball

Last month, I noted that EPA’s Office of Air Quality Planning and Standards had released a draft reassessment of the particulate matter NAAQS.  In a bold moment of speculation, I indicated that it would be difficult for EPA to avoid lowering the PM2.5 NAAQS to between 8.0 and 10.0 micrograms/cubic meter.  Following issuance of the draft, and in order to ensure that EPA does not ignore the emerging scientific consensus,… More

Injunctive Relief Is Available Outside the Fenceline

On Monday, District Judge Rodney Sippel ordered sweeping injunctive relief against Ameren Missouri, intended to remedy violations of PSD requirements he had previously identified resulting from upgrades to the Ameren Missouri Rush Island generating plant. 

Notwithstanding the lengthy opinion, most of the Court’s findings are fairly plain vanilla.  Basically, Judge Sippel ordered Ameren Missouri to submit a PSD permit application and he ruled that BACT for control of SO2 emissions at Rush Island required installation of wet flue gas desulfurization equipment.… More

The Trump Administration Couldn’t Spell Irony If You Spotted It the I, R, O, and N.

Yesterday, EPA and the National Highway Traffic Safety Administration released the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” more succinctly known as the withdrawal of the California’s § 209 waiver under the Clean Air Act.  As part of that announcement, EPA Administrator Andrew Wheeler was quoted as saying that “California has the worst air quality in the United States.”

And why is this ironic? … More

Good Neighbors Delayed Are Good Neighbors Denied

Last Friday, the D.C. Circuit Court of Appeals ruled that EPA violated the Clean Air Act in failing to impose deadlines on upwind states violating the CAA’s Good Neighbor provisions.  The Court concluded that, where downwind states face significant consequences in not meeting statutory deadlines to attain National Ambient Air Quality Standards, but don’t control their own fate because upwind states are contributing significantly to the downwind states’ nonattainment,… More

Hope Springs Eternal at the Climate Leadership Council

The Carbon Leadership Council, everyone’s favorite group of former grand poohbahs, is still working at building support for its “carbon dividends” plan.  Hope springs eternal.  And I don’t mean to make light of the CLC’s efforts.  We can use all the hope we can get.

The CLC has not make any huge changes to the plan, but they have tweaked it a bit and run numbers again. … More

Particulate Matter Is More Dangerous Than We Thought: What Will EPA Do With the NAAQS?

EPA’s Office of Air Quality Planning and Standards has released a draft of its reassessment of the adequacy of the current national ambient air quality standard for particulate matter.  Here’s the primary takeaway concerning PM2.5:

The risk assessment estimates that the current primary PM2.5 standards could allow a substantial number of PM2.5-associated deaths in the U.S.

When taken together, we reach the preliminary conclusion that the available scientific evidence,… More

Heads Trump Wins; Tails Regulation Loses

Earlier this week, the Department of Energy withdrew definitions of “general service lamps” and “general service incandescent lamps” promulgated under the Obama administration.  The effect is to eliminate requirements that such lamps move to more energy-efficient bulbs.  Examples include recessed fixtures, referred to, at least in my house, as “cans,” and chandeliers.

On this one, I’ll leave the legal issues to others.  To me, the noteworthy aspect was that DOE is defending the rule,… More

EPA Proposes to Eliminate Oil and Gas Methane Rules: Just Another Brick in the Deregulatory Wall

Last week, EPA proposed to eliminate regulation of methane emissions from the oil and gas industry.  The most noteworthy response to the proposal came from the large producers.  ExxonMobil, Shell, and BP all oppose the rollback.  In fact, Shell went on record not that long ago requesting the EPA increase the stringency of oil and gas methane regulation.  Anyone else hear an echo of the large automakers’ response to the Administration’s efforts to relax fuel efficiency standards?… More

More Sauce For the Chevron Goose

Last week, EPA proposed revisions to its regulations governing the issuance of water quality certifications under § 401 of the Clean Water Act.  The regulations are long-overdue and, notwithstanding the source, some of the changes are appropriate.  Nonetheless, the key element of the revisions is the provision that would preclude state and tribal agencies from considering issues other than those related to the water quality impacts of discharge being permitted – and to include that provision,… More

The Trump Administration Provides Another Lesson in How to Lose An Environmental Case

Last week, the 4th Circuit Court of Appeals vacated the Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement for the Atlantic Coast Pipeline.  It’s the second time that the Court has rejected the FWS approval of the project.  I have previously suggested that the Trump administration cares more about providing material for the President’s Twitter feed than advancing its deregulatory or energy dominance agendas. … More

Last of An Endangered Species Spotted on Capitol Hill: A Practical Senator

Bloomberg Environment (subscription required) is reporting this morning that Senator Chris Coons is trying to persuade Democrats that they should agree to limit EPA’s authority to regulate greenhouse gases in return for GOP support for a carbon tax.  As regular readers will know, I’ve supported for years the idea of a grand bargain such as Senator Coons is now proposing.

I have never understood environmentalists’ opposition to such a deal. … More

Affordable Clean Energy — Or, Much Ado About Nothing

Here’s my take on the Affordable Clean Energy Plan.

Who cares?

On the merits, it does almost nothing.  It requires only that states impose heat rate improvement requirements on coal-fired power plants.  It’s not going to meaningfully lower emissions.  Administrator Wheeler has trumpeted that emissions will be 35% lower in 2030 than in 2005, but the ACE rules contribute almost nothing to that result.… More

Affordable Clean Energy or Carbon Free?

Yesterday, EPA finalized its Affordable Clean Energy rule, which will replace the Obama Clean Power Plan.  More on ACE later.  For now, I just want to use the ACE roll-out to contrast what’s happening at the federal level with what’s happening in the rest of the world – specifically, in this case, in Boston.

While President Trump is throwing coal a “lifeline,” the Carbon Free Boston:  Transportation Technical Report is discussing banning internal combustion automobiles from the City of Boston by 2050. … More

Woe is WOTUS

When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over the “just plain nuts” theory.  I also noted that the Supreme Court had the luxury of ignoring the chaos that would ensue.

Whatever one may think of the merits of the competing theories,… More

Broken Record Department; EPA Loses Another Delay Case

On Monday, District Judge Haywood Gilliam imposed a schedule on EPA for review of state plans under EPA’s 2016 rule for emissions from municipal solid waste landfills.  The ruling is notable for two reasons.

Because EPA did not dispute that it had missed certain deadlines, its first line of defense wasn’t that it complied with the statute; it was that the states challenging EPA’s delay did not have standing. … More

MassDEP Proposes to Ratchet Down PFAS Standards

On Friday, MassDEP proposed a number of revisions to the Massachusetts Contingency Plan, including reporting and cleanup standards for PFASThe proposed GW-1 standard, applicable to current and potential drinking water source areas, would be 20 parts per trillion for the sum of six PFAS compounds (PFDA, PFHpA, PFHxS, PFOA, PFOS, and PFNA) – significantly more stringent than the 70 ppt guideline for the sum of five PFAS compounds currently in effect.… More

EPA Weighs In On Whether Discharges to Groundwater Can Be Subject to the CWA — You Won’t Be Surprised at the Answer

On Monday, EPA issued an Interpretive Statement concluding that point source discharges to groundwater are never subject to NPDES permitting requirements.  EPA did a good job marshalling its arguments – much better than this EPA has done in a number of similar situations.

I have previously noted the difficulties associated with regulating point source discharges to groundwater under the NPDES program,… More

Reason Number 42,659 For Putting a Price On Carbon

I don’t work in the oil and gas industry.  This lede from Bloomberg Environment (subscription required) may not be news to anyone in the industry, but it absolutely blew me away:

America’s hottest oil patch is producing so much natural gas that by the end of last year producers were burning off more than enough of the fuel to meet residential demand across the whole of Texas.… More

Can You Say “Pyrrhic Victory”?

In 2008, EPA issued an administrative order to Chantell and Michael Sackett, requiring them to remove what EPA had concluded was illegally placed fill on their property in Northern Idaho.  Litigation followed, including a fairly well-known Supreme Court decision.

After the Supreme Court ruled that the Sacketts were entitled to appeal the administrative order, the case was remanded to the District Court. … More

Disposing of Coal Combustion Residuals Just Got Much More Expensive — At Least in North Carolina!

On Monday, the North Carolina Department of Environmental Quality issued determinations with respect to six Duke Energy coal plants, requiring that Duke close coal combustion residual surface impoundments at the plants by excavating and removing all coal ash from the impoundments.  DEQ did so notwithstanding that the impoundments all received “low-risk” classifications by DEQ.

According to Greenwire (subscription required), the directives will increase the cost of complying with CCR requirements at these plants by $4B-$5B.… More

The Clean Peak Standard Starts to Take Shape

The Massachusetts Department of Energy Resources has released its Clean Peak Standard Straw Proposal, providing its thinking on the implementation of that part of An Act to Advance Clean Energy, from 2018.  As a reminder, the basic idea is that a “Qualified RPS Resource,” installed after January 1, 2019, may obtain “clean peak certificates” for energy generated during seasonal peaks.  Existing Qualified RPS Resources may obtain CPCs if they are paired with battery storage installed after January 1,… More

Just In Case You Wondered Whether PFAS Are Really a Big Deal

If you were thinking that PFAS were important, but you’ve been unsure just how big a deal they are, you need look no further than the Statewide PFAS Directive issued by the New Jersey Department of Environmental Protection.  Some of my colleagues in New Jersey may correct me, but I think that the Directive may be the most wide-ranging order I’ve ever seen issued by an environmental agency. … More

Any Press Is Good Press

Yesterday, the Washington Post (subscription required) published an article about the Trump Administration’s inability to defend many of its policies in court. Yours truly was among those quoted.  I liked the story and it was largely accurate, including its quotes from me, except that Fred Barbash stated that I had “been looking forward to deregulation under Trump.”  On that issue, I can only say that Fred and I had a misunderstanding,… More

Would the Last Generator to Leave the Wholesale Competitive Energy Market Please Turn Off the Lights?

On Friday, Connecticut announced that it had reached agreement with Dominion, Eversource, and United Illuminating to keep the Millstone nuclear plant operating for 10 more years.  Not coincidentally, on the same day, the six New England Governors announced their “Commitment to Regional Cooperation on Energy Issues.”  An important element of that commitment is to work with ISO New England:

to evaluate market-based mechanisms that value the contribution that existing nuclear generation resources make to regional energy security and winter reliability.… More

When Is A Regulatory Denial a Regulatory Taking? Not Very Often, At Least in Massachusetts

On Tuesday, the Massachusetts Appeals Court denied a regulatory takings claim brought by a plaintiff whose development plans for her property in Falmouth were denied by the Falmouth Conservation Commission.  Plaintiff’s evidence showed that the property was worth $700,000, if developable, and $60,000, if not.  

The Court ruled, in conformity with the “vast majority” of decisions in other states, that there is no right to a jury trial on the question whether a regulatory taking has occurred.… More

PFAS Concerns – Real Hazard or Just Outrage?

Concern about the impacts of Poly- and Perflouroalkyl Substances is extensive and growing.  Without seeking to downplay the potential risks from PFAS exposure, I do think that the way we are addressing PFAS demonstrates everything that’s wrong about how we talk about, assess, and respond to environmental risk in the United States.

Exhibit 1 for my view is Senator John Barrasso, the Republican chair of the Senate Committee on Environment and Public Works.  … More

More on the Green New Deal: Nukes, Hydro, and a Carbon Tax Aren’t Dead Yet.

Yesterday, Ed Markey and Alexandria Ocasio-Cortez released a proposed congressional resolution providing a framework for the so-called Green New Deal.  I am pleased to note that it would not exclude use of nuclear power or large-scale hydropower.  Neither would it preclude use of market-based approaches towards regulating carbon.  Of course, it also doesn’t advocate for putting a price on carbon.

I realize that this is simply a resolution and not proposed legislation. … More

Carbon Free Boston — Or How to Save the World in a Few Easy Steps

Boston’s Green Ribbon Commission has just released Carbon Free Boston, which outlines a pathway to a carbon-free city by 2050.  It’s a thoughtful and careful report.  My immediate reaction was two-fold.  Of course we have to do all this and of course this will be nearly impossible.

The transmittal letter to Mayor Walsh acknowledges the immensity of the undertaking:

The report’s analysis makes clear the great magnitude of the change needed to achieve carbon neutrality.… More

Deadlines For Permit Issuance Are Double-Edged Swords

On Friday, the D.C. Circuit Court of Appeals ruled that applicants for licenses under the Federal Power Act may not reach private agreements with states to circumvent the FPA requirement that states act on water quality certification requests under § 401 of the Clean Water Act within one year.

The facts are important here and somewhat convoluted.  The short version is that PacifiCorp operates a number of dams on the Klamath River. … More

EPA’s New Approach to Cost Benefit Analysis: Charles Dickens or Alice in Wonderland?

I’ve only now had the opportunity to catch up with EPA’s proposed reconsideration of its approach to cost-benefit analysis for the Mercury and Air Toxics Standards.  I don’t know whether I’ve gone down a rabbit hole or it’s just that the law is an ass.  Either way, it’s not good news.

As far as I can tell, EPA today does not really challenge the analysis performed in 2016 in response to Michigan v.… More

Is RGGI For Transportation About to Happen? All Will Be Revealed in 2019

On Tuesday, nine Northeastern and Mid-Atlantic states participating in the Transportation Climate Initiative – notably not yet including New York – announced that they:

will design a regional low-carbon transportation policy proposal that would cap and reduce carbon emissions from the combustion of transportation fuels through a cap-and-invest program or other pricing mechanism.

It’s a major development.  Electric sector emissions have dropped substantially in recent years and now account for less than half the GHG emissions resulting from transportation. … More

Massachusetts Comprehensive Energy Plan — There’s a Lot to Do.

Last week, the Massachusetts Department of Energy Resources released its Comprehensive Energy Plan. It’s a generally solid piece of work, even if it doesn’t say anything hugely surprising. Its various policy recommendations can be summarized fairly easily: electrify and conserve.

The first recommendation is nicely illustrated by this pie chart from the CEP.  In 2016only 17% of Massachusetts’ energy demand of 1,074 trillion BTUs was from the electric sector.… More

The WOTUS Rule and the Purpose of the Clean Water Act

A lot of proverbial ink has been spilled regarding the Trump administration’s proposal to amend the definition of “waters of the United States” under the Clean Water Act.  The administration has focused on what it views as a more reasonable legal interpretation of the historical scope of the term.  It has also emphasized returning authority to the states and providing more certainty to landowners.

Environmentalists have focused on the broader interpretation that has historically been given to the term and that the Scalia opinion in Rapanos did not command a majority of the Court.… More

“Managed Retreat?” — Once More, Scientists Fail to Consult with Branding Specialists

Two seemingly unrelated adaptation stories caught my eye last week.  The first involved efforts by the California Coastal Commission to provide guidance on “Residential Adaptation” to climate change.  The primary reason why the draft guidance is getting so much attention is that the Commission raised the possibility of “managed retreat” in some situations.

I get the point of managed retreat.  It seems preferable to repeatedly bowing to political pressure and bailing out coastal property owners who ignore the risks associated with climate change. … More

Coming Soon To a Major City Near You — Building Energy Efficiency Standards

Members of the New York City Council have introduced a proposal to impose mandatory building energy efficiency standards.  The standards, which vary by building type and use, would apply to buildings greater than 25,000 square feet, though rent-regulated buildings would be exempt.  

The real estate industry is a powerful force in New York City and I believe that our current President may have some views on this legislation. … More

And Then There Were Three: Why Is Massachusetts Still Refusing to Seek NPDES Delegation?

As readers of this space know, I have been mystified by the opposition in Massachusetts to obtaining delegation of the NPDES Program.  In my temperate way, I have called it an embarrassment.

I have just learned that Idaho was recently delegated authority to operate the NPDES program.  Now, only Massachusetts, New Mexico, and New Hampshire remain undelegated.

The Boston Globe said that the current arrangement has worked. … More

A Mixed Bag For Climate Litigation Plaintiffs

Last week there were two court decisions on cases in which groups of citizens are seeking court orders requiring the government to act on climate change.  The biggest news was that the Supreme Court denied the stay requested by the United States in Juliana v. United StatesThis “Case of the Century” was supposed to go to trial on October 29.

If I were the plaintiffs,… More

The Rubber Begins to Hit the Road on Adaptation

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake,… More

A Short Rant Concerning Transportation Sector GHG Emissions

The Energy Information Administration today released CO2 emissions numbers through 2016.  While I could rant about the 21.4% increase in GHG emissions in Florida since 1990, as compared to the 23.7% decrease in Massachusetts over the same period, when Florida faces even great climate risk than Massachusetts, I won’t do that.

Today’s rant is about transportation GHG emissions.  While there’s a lot of fun data in the EIA report,… More

EPA’s Latest Particulate Review Shows Impacts Below the Current NAAQS. How Will Trump Avoid Doing Something About It?

Last week, EPA posted its draft Integrated Science Assessment for Particulate MatterIt’s the foundational document for EPA’s periodic review of its National Ambient Air Quality Standard for PM.  The current standard for PM2.5, promulgated in 2012, is 12 ug/m3.

Section 109 of the Clean Air Act requires the Administrator to set the NAAQS “requisite to protect the public health” with “an adequate margin of safety.”

The new ISA states that:

Evidence from U.S.… More

A Carbon Tax Twofer. A Meat Tax? No, Sir.

It’s probably not news that the immediate prospects for a carbon tax aren’t great.  I still think that it’s going to seem impossible until, fairly suddenly, it actually happens.  Hope springs eternal.

In any case, there has been some news on the carbon tax front this month.  Here’s the quick summary.  The Climate Leadership Council, everyone’s favorite collection of Republicans who used to matter, released The Dividend Advantage,… More

No Circuit Split Here: Second Circuit Affirms New York’s ZEC Program

As Carol Holahan discussed, the 7th Circuit last month affirmed the Illinois zero emission credit program.  Now the 2nd Circuit has weighed in, agreeing with the 7th Circuit and affirming the similar New York State ZEC program.  Whatever one’s views on the merits, it seems pretty clear at this point that state programs to encourage generation of renewable or zero-emissions energy will be upheld by the Appeals Courts,… More

Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.

The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject to Clean Water Act jurisdiction.  We now have the requisite circuit split, opening the possibility of Supreme Court review.  For those who might still be open-minded, I commend both the majority and dissenting opinions in the 6th Circuit; they are each as clear and as persuasive as they could be.

Although I have long thought that it does not make sense to regulate discharges to groundwater under the CWA,… More

We May Not Always Have Paris, But Perhaps We Can Do Better Than Paris

Earlier this week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement.  I don’t doubt that the CLC analysis is right.  If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.… More

EPA Proposes To Replace the Clean Power Plan. How About a Proposal To Replace Its Benefits?

EPA has finally released its proposed replacement for the Clean Power Plan, dubbed the Affordable Clean Energy Rule.  More affordable than clean, I’d say.

What’s really telling is that EPA’s own analysis shows that the CPP would have delivered significantly more benefits than ACE.  And that goes for both direct benefits in GHG emissions reductions and indirect benefits related to reductions in traditional criteria pollutants.… More

Another Day, Another Reversal of an EPA Regulatory Delay

On Friday, the D.C. Circuit Court of Appeals vacated EPA’s “Delay Rule”, which postponed compliance with EPA regulations governing preparation of Risk Management Plans under the Clean Air Act.  The decision comes only one day after another court decision vacating the “Suspension Rule” which postponed the Waters of the United States Rule.

Memo to EPA General Counsel’s office.  If something labeled “Delay Rule” or “Suspension Rule” comes across your desk,… More

How Much Does Trump Even Care About Deregulation?

On Thursday, the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States Rule for two years was struck down.  Judge David Norton of the District of South Carolina issued a nationwide injunction against the rule.

It’s important to note that the case was not about the merits of the WOTUS rule.  It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.… More

Court Orders EPA to Ban Chlorpyrifos: No Escaping Jurisdiction After 10 Years of Delay

Last week, the 9th Circuit Court of Appeals ordered EPA to revoke all tolerances for chlorpyrifos within 60 days.  It’s another fairly devastating indictment of the Trump administration.

First of all, the merits were pretty clear.  Clear enough that the administration did not attempt to defend the case on the merits!  The statutory language requires EPA to ban pesticides from use on food products unless:

There is a reasonable certainty that no harm will result from aggregate exposure to the pesticide.… More

Winston Churchill and Fuel Economy Standards

So the Trump administration has formally proposed to roll back CAFE standards for model years beginning in 2021.  And California has announced its intention to start separately enforcing its own standards if the federal standards are weakened.  Trying to sort it all out, I was somehow reminded of the famous Winston Churchill statement:

Many forms of Government have been tried, and will be tried in this world of sin and woe.… More

Score One For Rational Regulation: The 2nd Circuit Rejects Environmental and Industry Challenges to EPA’s Cooling Water Intake Structure Rule

On Monday, the 2nd Circuit Court of Appeals rejected all challenges to EPA’s cooling water intake structure rule.  Notwithstanding the Court’s rejection of the industry challenges, it’s a big win for industry.  As I noted when the rule was promulgated, industry dodged a major bullet when EPA decided not to require closed-cycle cooling at existing facilities.

The decision is really all about Chevron deference and is another bit of evidence in support of my ongoing effort to demonstrate that conservatives might want to be careful what they wish for when they discuss overruling Chevron.… More

The D.C. Circuit Holds that Hydroelectric Facilities May Not Ignore Historic Impacts In Relicensing

Earlier this month, the D.C. Circuit Court of Appeals issued a decision that is a must-read for anyone who will be needing at some point to relicense an existing hydroelectric facility.  The short version is the status quo may no longer be good enough and dam operators may have to improve on existing conditions in order to succeed in relicensing.  At a minimum, facility operators will have to take the cumulative impacts of dam operation into account in performing environmental assessments under NEPA required for relicensing.… More

Brick/Clay MACT: Environmentalists in a TKO Over Industry

Earlier this month, the D.C. Circuit Court of Appeals ruled on challenges to EPA’s National Emission Standards for Hazardous Air Pollutants from the brick and clay industries.  The Court granted the environmentalists’ petitions almost in their entirety and denied the industry petitions in their entirety.

The decision is not really surprising, because EPA had failed to justify a number of the decisions that it made. … More

WOTUS: Legal Issue or Scientific Issue?

Last week, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule.  It’s a shrewd but cynical document.  It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question.  Instead of asking what waters must be regulated to ensure that waters of the United States are protected,… More

WOTUS, SCHMOTUS. Can the Corps Reach a Reasoned Jurisdictional Determination In Less Than 12 Years?

The debate over the definition of “Waters of the United States” goes on and on.  I tend to think that Kennedy’s “significant nexus” test was a reasonable approach to making sense of a vague statute.  I also think that the Obama administration definitional rule was supported by good science.

What we sometimes lose track of in the ongoing debate is that the definition – whatever we choose – matters,… More

FERC Remains An Independent Agency

In January, FERC rejected Secretary Perry’s proposal to compensate generators who maintain a 90-day supply of fuel on-site – a proposal widely seen as an attempt to prop up struggling coal and nuclear generators.  Not willing to take no for an answer, the Administration has recently floated the idea of using authority under the Federal Power Act and the Defense Production Act to require power purchases from coal and nuclear plans in order to address the national security emergency apparently resulting from the threatened shutdown of these facilities.… More

EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time. … More

The Science Advisory Board Appears to Think that Its Job Is Still to Give EPA Independent Advice

I’ve posted a lot over the years about the role of EPA’s Science Advisory Board in judicial review of agency decisions.  The short version is that, on scientific questions, EPA’s going to be on thin ice if its regulatory decisions are inconsistent with SAB advice.  Recently, I’ve speculated on the level of deference that EPA will get on scientific issues if it starts to ignore scientific consensus. … More

Massachusetts Selects Vineyard Wind In 83C RFP

The Evaluation Team in Massachusetts’ Section 83C Offshore Wind Generation request for proposals (“RFP”) for long term contracts for offshore wind has announced that our client Vineyard Wind was named the winning bidder in the RFP for an offshore wind project to be built off the coast of Martha’s Vineyard.  The project will include approximately 800 megawatts of offshore wind energy generation as well as a generator lead line connection. … More

Just How Arbitrary Does EPA Have to Be to Be Arbitrary and Capricious?

Last Friday, the D.C. Circuit Court of Appeals vacated EPA’s rule adding the West Vermont Drinking Water Contamination Site to the National Priorities List, finding EPA’s decision to be arbitrary and capricious and not supported by substantial evidence.  As the opinion makes clear, EPA has to work pretty hard to lose these cases.

Why did EPA lose?

The critical issue was whether the overburden and bedrock aquifers beneath the site were directly connected. … More

How Much Deference Will EPA Get On Its CAFE Standards Decision?

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.

I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron,… More

ExxonMobil’s AG Claims Are Dismissed — What a Shock!

Yesterday, Judge Valerie Caproni dismissed claims brought by ExxonMobil against New York Attorney General Schneiderman and Massachusetts Attorney General Healey.  Boiled down to their essence, ExxonMobil’s claims were that investigations by Schneiderman and Healey into the possibility that ExxonMobil had committed fraud by misleading investors regarding the risks that climate change poses to ExxonMobil’s business were politically motivated and in bad faith.

The decision was not difficult. … More

Shooting Fish In a Barrel: EPA Loses Another Regulatory Delay Case

On Wednesday, EPA lost yet another regulatory delay case.  After the Obama EPA promulgated rules updating requirements concerning certification and use of “restricted use pesticides” in January 2017, the Trump EPA purported to delay the rule’s implementation date five separate times.  According to the Court, EPA provided no notice and opportunity to comment on four of those occasions; once, they provided a four-day (yes, four) comment period.… More

CSAPR is Better Than BART

Today, the D.C. Circuit Court of Appeals rejected environmental and state/industry challenges to EPA’s Regional Haze Rule.  In essence, the ruling confirms that EPA was reasonable in determining that compliance with its Cross-State Air Pollution Rule was sufficiently stringent to constitute “better-than BART” and thus could excuse states from complying with Best Available Retrofit Requirements where they are subject to CSAPR.  

Boy, that was a mouthful.… More

A Trial on Climate Change Claims Against the United States? What Fun!

Yesterday, the 9th Circuit rejected the Trump administration’s request for a writ of mandamus ordering the trial court to dismiss litigation brought by 21 children alleging that the government’s failure to address climate change had violated their constitutional rights.  It appears that the plaintiffs will get an opportunity to prove their claims.

It’s important to remember that this opinion is not about the merits. … More

Can Trump Save Coal Without Killing All the Miners?

Last month, the New York Times reported on the identification of the largest cluster of advanced black lung cases ever reported.  (And lest you think that this is fake news, the Times contains a link to the article, which was a Research Letter published by the Journal of the American Medical Association, that known collection of left-wing zealots.)  Here’s the sobering summary from one of the authors:

There’s an unacceptably large number of younger miners who have end-stage disease and the only choice is to get a lung transplant or wait it out and die.… More

OMB Reports that the Benefits of Regulation Exceed the Costs. The President Knows that Can’t Be Right

Late last month, to no fanfare whatsoever, OMB released its annual report on the costs and benefits of federal regulations.  There’s a reason that the Administration did not give the report any attention.  The report states that, for the 10-year period ending September 30, 2016, the benefits of major Federal regulations ranged from $219 billion and $695 billion, while the costs ranged between $59 billion and $88 billion. … More

Three Weeks; Three Decisions Rejecting Regulatory Delays

The Trump administration.  The gift that keeps on giving to bloggers.  After posting last week about the order requiring DOE to send its energy efficiency standards to the Federal Register for publication, I noted that that regulatory delay cases were going to have to become a regular feature in this space.  Lo and behold, on the same date, Judge Jeff White rejected EPA’s “Delay Rule” that would have postponed compliance deadlines under the Formaldehyde Act.  … More

The Clean Air Act is Really Complicated; Can’t We Call the Whole Thing Off?

Last week, the Court of Appeals for the District of Columbia struck down EPA’s rule implementing the 2008 ozone standards.  My primary take-away?  The structure of the Clean Air Act is so dense and so complicated that it gives me a headache, and I do like to think I’m something of an expert.  Those of us who believe in government regulation need to be honest and admit that there’s a reason why some people become Libertarians.  … More

The “Best Available Science” Is That the Arctic Ringed Seal Is Threatened

Earlier this week, the 9th Circuit Court of Appeals reversed a District Court decision and reinstated the National Marine Fisheries Service’s decision to list the Arctic ringed seal as threatened under the Endangered Species Act.  The decision was not a surprise, because the 9th Circuit had already affirmed NMFS’s decision to list the bearded seal on identical grounds.

What caught my eye was this language in the opinion – actually a quote from the bearded seal decision.… More

More Guidance on Guidance: DOJ Will Not Enforce “Improper” Agency Guidance Documents

In November, Attorney General Sessions issued a memorandum prohibiting DOJ from issuing regulations disguised as guidance.

Now, DOJ has taken the prohibition a step further.  It will no longer rely on guidance issued by other agencies when taking civil enforcement action.  The memorandum has made the regulated community and the NGO community sit up and take notice.

I am sympathetic to the concerns raised in the Sessions memo. … More

NGOs Again Fail to Establish that EPA Has a Non-Discretionary Duty Under the CWA Stormwater Regulations

Last month, the 1st Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA had a non-discretionary duty to require persons owner property where stormwater runoff contributes to an exceedance of a TMDL to obtain NPDES permits.  Now, Judge George Russell has ruled that EPA does not have non-discretionary duty under the Clean Water Act to determine whether commercial, institutional, and industrial users contribute to a violation of water quality criteria in the Back River watershed. … More

Statutory Deadlines Matter — EPA Gets Taken to the Woodshed

Earlier this week, EPA was ordered to take final action on a Clean Air Act § 126(b) petition filed by the State of Connecticut, asserting that emissions from the Brunner Island Steam Electric Station in Pennsylvania contribute to nonattainment in Connecticut.  EPA did not dispute liability; it had clearly missed the original statutory deadline.  The case was all about the remedy.  EPA asked to be given until December 31,… More

The 9th Circuit Weighs In — Discharges to Groundwater Are Subject to the Clean Water Act

As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute.  Now the 9th Circuit has weighed in, finding that point discharges to groundwater are subject to the Clean Water Act, so long as an ultimate discharge of pollutants to surface waters of the United States is “fairly traceable” to the discharge to groundwater. … More

EPA Approvals of TMDLs Are Not “Drive-by Permitting Determinations”

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of landowners contributing to violations of the TMDLs.  Easy cases make good law.

CLF’s position was simple.  EPA’s approval of the TMDLs meant that EPA had determined that stormwater controls are needed. … More

FERC Rejects Grid Reliability and Resilience Pricing — For Now!

Yesterday, FERC terminated the docket it opened in response to DOE Secretary Perry’s September proposal to compensate generators who maintain a 90-day fuel supply on-site.  The intent of the proposal was to compensate generators who provide reliability and resilience attributes to the grid.

The decision was unanimous, though there were several concurrences.  The commissioners were not persuaded that there is a reliability problem that requires immediate,… More

Does EPA Have a Non-discretionary Duty To Make a Statute Work?

If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency.  That was the subject of last week’s decision in A Community Voice v. EPA, in which the 9th Circuit ordered EPA to issue a proposed rule updating its lead paint standards within 90 days,… More

The Migratory Bird Treaty Act No Longer Criminalizes Incidental Takes

Last week, the Office of the Solicitor in the Department of the Interior issued a legal Opinion concluding that the Migratory Bird Treaty Act does not prohibit the incidental take of migratory birds.  It’s a thorough Opinion.  While I disagree with it on some individual issues and I’m sure many will disagree with its conclusions, I think it should survive judicial review, assuming that a reviewing court can get past the fact that it directly contradicts a prior Opinion of the Interior Department issued less than a year ago.… More

EPA Will NOT Second-Guess Generators’ Projections of Future Emissions Under the NSR Program

I’ve noted numerous times that the NSR program is incomprehensible gibberish.  These are scientific and objective comments.  The most recent example of this is the DTE litigation, in which a one-judge minority somehow ended up writing the opinion of the 6th Circuit Court of Appeals, allowing EPA enforcement claims against DTE Energy to continue.

The question in DTE Energy is whether EPA can second-guess a generator’s pre-construction prediction of future actual emissions and bring a claim for an NSR violation – even where post-project actual emissions did not show a significant net increase in emissions. … More

Significant Nexus Lives! (For Now, In the 9th Circuit)

On Monday, the 9th Circuit affirmed the conviction of a Joseph Robertson, Montana man who:

discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. Cataract Creek is a tributary of the Boulder River, which in turn is a tributary of the Jefferson River—a traditionally navigable water of the United States.

This somewhat attenuated connection to a “traditionally navigable water” put the case in the crosshairs of those seeking to narrow the definition of “Waters of the United States.”  Robertson appealed on two grounds relevant to this larger debate. … More

Opposing NPDES Delegation to Massachusetts Is So 20th Century

On Tuesday, the Boston Globe joined most local environmental organizations in opposing delegation of the NPDES program to Massachusetts.  How wrong is this?  Let me count the ways.

  1. Donald Trump
  1. Even recognizing, as the Globe points out, that presidential administrations are only four years, does anyone seriously expect the federal EPA budget to be anything other than massively underfunded for the foreseeable future?…
  2. More

Coming Soon to a Northeast or Mid-Atlantic State Near You: Regulations on Carbon Emissions From Transportation

Yesterday, eight states in the Transportation Climate Initiative issued a joint statement pledging to pursue regional solutions to GHG emissions from transportation.  The statement does not identify any specific policy options; instead it simply announced that they are “initiating a public conversation about these opportunities and challenges.”

Even if the statement doesn’t say so, what everyone is hearing from this announcement is simply this:  RGGI for transportation.… More

When Is a Discharge to Groundwater Subject to the Clean Water Act? Can You Say “Significant Nexus”?

Whether the Clean Water Act regulates discharges to groundwater has been a topic of significant debate.  At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that all of the courts of appeal that have addressed the issue have concluded that it does not.  As I have noted, the problem with the “yes” answer is that pretty much all groundwater eventually discharges to surface water,… More

If the Apocalypse Approaches, But the Administration Ignores It, Will It Make a Sound?

Last week, the government released the Climate Science Special Report, the first volume of the Fourth National Climate Assessment.  It makes grim reading – or perhaps more accurately, grim reaper – reading.  Here’s what we might call the executive summary of the Executive Summary.  First, the bottom line:

This assessment concludes, based on extensive evidence, that it is extremely likely that human activities, especially emissions of greenhouse gases,… More

Sometimes Guidance Actually Provides Guidance

As regular readers know, the tension between guidance and regulation is one of my favorite topics.  My view is that, in general, guidance is too often used simply to avoid notice and comment rulemaking and that, once issued, it is treated by those implementing it in the agency street-level bureaucracy as though it were a rule.  Nonetheless, guidance is sometimes appropriate.  The recent decision in Sierra Club v.… More

It’s the Externalities, Stupid.

Last week, the Lancet Commission on pollution and public health (free registration required) released a study on the annual costs of pollution.  There’s bound to be argument about the specifics, but it’s difficult to argue with the conclusion that those costs are really, really, big.  The study estimates the annual global welfare loss due to pollution at $4 trillion – $6 trillion.  The Lancet says that this is more than 6% of global economic output. … More

DOE NOPR Faces Criticism But Remains on Fast-Track, with Initial Comments Due October 23

On September 28, 2017, Secretary of Energy Rick Perry sent a letter to FERC enclosing a Notice of Proposed Rulemaking(NOPR), which Secretary Perry asserts “requires the Commission-approved organized markets to develop and implement market rules that accurately price generation resources necessary to maintain the reliability and resiliency of our Nation’s electric grid.” Both the timing and substance of the proposal have been criticized by energy industry representatives,… More

Pruitt Banishes “Sue and Settle” – A Solution In Search of a Problem?

EPA Administrator Scott Pruitt today issued a Directive prohibiting the practice of “sue and settle.”  He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.”  They are two very strange documents.

As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support. … More

Court Rejects BLM’s Efforts to Unbalance the Scales of Justice

Yesterday, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands.  If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.

The case is pretty simple and the outcome should not be a surprise. … More

First Electric Generation. Then Transportation. What About Buildings?

On Monday, EnergyWire (subscription required) reported that New York City Mayor Bill de Blasio has unveiled a plan to cap fossil fuel use in buildings in New York City.  (I haven’t seen the specific plan, but it is referenced in City’s overall plan, “1.5°C:  Aligning New York City with the Paris Climate Agreement,” that the City just released.)  The building plan is based on data gathered as a result of local ordinances requiring buildings with more than 25,000 square feet to report energy and water use. … More

How Imminent Are the Impacts of Climate Change in Everett?

Yesterday, Judge Mark Wolf dismissed part of the Conservation Law Foundation’s claims in its litigation against ExxonMobil concerning ExxonMobil’s Everett Terminal facility.  The opinion is both interesting and pleasurably concise – a rare combination!

Judge Wolf found that CLF had credibly alleged that the Terminal is violating its NPDES permit.  Importantly, he also found that CLF stated that there is:

substantial risk”… More

If China Can Cap-and-Trade Auto Fuel, Why Can’t We?

Bloomberg reported earlier this week that:

China will soon unveil a mandatory cap-and-trade credit program for electric cars, starting the countdown for carmakers to be in compliance with stricter rules on emissions and fuel economy.

It’s pretty well known that China is not the world’s most transparent government.  Thus, I won’t fully believe until I see it.  On the other hand, it does seem pretty clear that China is intent on cracking down on motor vehicle pollution. … More

Trump’s 2-For-1 Order: Still Arbitrary and Capricious After All These Months

In June, I posted about Foley’s brief in support of those challenging Executive Order 13771, the so-called “2 for 1” EO.  By ignoring the benefits of existing and proposed regulations, the Order ignores the purposes behind the legislation pursuant to which regulations are promulgated.  The Order is thus the definition of arbitrary and capricious.

Late last week, OMB issued a memorandum to executive agencies,… More

Cooperative Federalism Requires Cooperation From Both Sides

In 2011, the National Parks Conservation Association sued EPA for failure to enforce the regional haze requirements of the Clean Air Act.  EPA and the NPCA settled in 2012, establishing a schedule by when SIPs or FIPs had to be promulgated.  The only state remaining is Texas.  After several extensions, EPA is required to approve a SIP or promulgate a FIP by September 9, 2017.  You can hear the clock ticking.… More

What’s a Court to Do When EPA Misses a Statutory Deadline?

Earlier this week, a divided 9th Circuit Court of Appeals affirmed entry of a consent decree between the Sierra Club and EPA, resolving litigation over EPA’s failure to promulgate attainment designations for the sulfur dioxide NAAQS under the Clean Air Act.

I would have thought that entry of the settlement would be fairly straightforward.  EPA misses deadlines with some regularity.  Persons sue over such failures with some regularity. … More

We’ll Always Have RGGI: Paris or no Paris, New England and Mid-Atlantic States Continue to Lead on Greenhouse Gas Emission Reductions

Yesterday, Massachusetts and the eight other New England and Mid-Atlantic states that participate in the Regional Greenhouse Gas Initiative announced a proposed plan for the continued implementation of RGGI (the region’s cap-and-trade program) between the years 2020 and 2030.   The plan calls for an additional reduction of GHGs by 30% by 2030, beyond the RGGI 2020 levels. Emissions would be capped at about 75 million tons in 2021,… More

The Social Cost of Carbon: Not Too Speculative for NEPA

Earlier this week, the Judge Donald Malloy of the District Court for the District of Montana granted summary judgment to the Montana Environmental Information Center on several of its claims alleging that the Office of Surface Mining had violated NEPA in approving a modification of a mining plan to expand the Bull Mountains Mine No. 1.  The decision is important for two reasons.

First,… More

The Montreal Protocol Is Not a Climate Change Statute

Earlier this week, the D.C. Circuit Court of Appeals struck down part of an EPA rule promulgated pursuant to the Montreal Protocol.  The section that was struck down would have required manufacturers of HFC-134a, which is not ozone-depleting and which had previously been determined by EPA to be an acceptable replacement for ozone-depleting compounds, to find other replacements, because EPA determined in 2015 that HFC-134a did not “reduce overall risks to human health and the environment.”  Why? … More

Coming Soon To a Massachusetts Facility Near You: More Citizen Enforcement?

Earlier this week, the Massachusetts Executive Office of Environmental Affairs went live with two new web sites intended to increase the public availability of information concerning regulated entities in Massachusetts.  The first, ePLACE, will provide information about on-line permit applications.  However, since MassDEP began accepting on-line applications on May 5, 2017, ePLACE is going to be of much more interest in the future than it is today. … More

Real Superfund Reform Would Not Place It At the Center of EPA’s Core Mission

Earlier this week, Scott Pruitt released the results of the Superfund Task Force he established in May.  Though skeptical, I was pleased at the creation of the task force and goals he established for it.  With the release of the report, my skepticism has returned.

First, the report and Pruitt’s memo about it repeat the claptrap about restoring “the Superfund program to its rightful place at the center of the agency’s core mission.”  Since he keeps repeating that statement,… More

State Programs to Encourage Zero-Emitting Generation are Really, Really, Constitutional

Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There’s definitely a trend here.  So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.

(Renewed caveat:  This firm represents,… More

State Programs to Encourage Zero-Emitting Generation Are Constitutional

Late last month, the 2nd Circuit Court of appeals rejected a challenge to Connecticut laws intended to encourage use of renewable energy.  Earlier this month, Judge Manish Shah, of the Northern District of Illinois, issued a companion decision, rejecting challenges to the Illinois Future Energy Jobs Act, which grants “Zero Emission Credits” to certain facilities, “likely to be two nuclear power plants owned by Exelon in Illinois.”

(Caveat:  This firm represents,… More

EPA Fails to Justify Its Use of Surrogates for Certain Hazardous Air Pollutants

Yesterday, the D.C. Circuit Court of Appeals remanded EPA’s MACT standards for PCBs, polycyclic organic matter, and hexachlorobenzene to EPA.  Rather than setting specific MACT standards for these compounds, EPA regulated them through “surrogates,” commonly particulate matter.  The Sierra Club and others argued that EPA did not adequately justify the use of surrogates.

The three-part test for the adequacy of a surrogate is clear and worth repeating:

(1) the relevant hazardous air pollutant is invariably present in the proposed surrogate;… More

NGOs 1, Trump EPA 0: The First Skirmish in the Great Environmental Rollback War Goes to the Greens

Earlier this week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017.  The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, pending EPA’s reconsideration of certain aspects of the Obama-era rule.… More

State Programs to Encourage Renewable Energy Are Constitutional (In Case You Were Worried)

Last week, the 2nd Circuit Court of Appeals affirmed a District Court decision rejecting a challenge to Connecticut statutes intended to encourage renewable energy development in Connecticut.  It’s a critical win, not just for Connecticut, but for many renewable energy programs in other states across the country as well.

(Important caveat.  These cases are bloody complicated and no blog could possibly summarize them without omitting important details. … More

EPA Does Not Have a Non-Discretionary Duty to Assess the Impact of Clean Air Regulations on Employment

Yesterday, the Court of Appeals for the 4th Circuit reversed a District Court decision and rejected the lawsuit by Murray Energy which argued that EPA had a non-discretionary duty under § 321(a) of the Clean Air Act to:

conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans,… More

Meet the New WOTUS. Same as the Old WOTUS.

Earlier this week, EPA and the ACOE began implementing the Trump administration’s efforts to deconstruct the Obama rule defining “Waters of the United States” under the Clean Water Act.  EPA and the ACOE submitted for Federal Register publication a proposed rule that would temporarily restore the WOTUS definition that existed prior to the promulgation of the Obama rule in 2015, while they go about drafting a narrower definition.… More

Attorneys General Continue to Battle the Trump Administration Over Environmental Regulations

Democratic Attorneys General have continued their efforts to combat the Trump administration’s attempts to roll back environmental regulations developed under the Obama administration in two recent actions. Thirteen AGs, including Massachusetts AG Maura Healey, sent a letter last week to Scott Pruitt, the Administrator of the Environmental Protection Agency, threatening legal action if the agency takes steps to weaken or delay the greenhouse gas emissions standards that were established in 2012 for cars and light-duty trucks for model years 2022-2025.… More

MassDEP Issues Final Pile Field Determination: Get Fixin’!

Back in September and February, we wrote about MassDEP’s Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the “project shoreline” — the outer boundary of a development proposal.  Triggered by proposed redevelopment of Lewis Wharf, the proposed interpretation essentially stated that if the piles comprising a pile field were no longer visible at “Extreme High Water”,… More

Superfund Reform, Part 2: Giving Credit Where Credit Is Due

Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decisions for big Superfund sites.  Now, he’s followed up with a memorandum announcing establishment of a task force to look at ways to reform Superfund implementation.  While he’s still plainly wrong in putting Superfund “at the center of the agency’s core mission,” I have to confess that I think he otherwise has pretty much hit a home run with the latest memorandum.… More

Will There Be a Trial on Climate Change Public Trust Claims? It’s Looking that Way.

Last November, the District Court of Oregon denied the motion of the United States to dismiss claims that the United States had violated a public trust obligation it owes to US citizens to protect the atmosphere from climate change.  Not surprisingly, the government sought interlocutory appeal.  On Monday, Magistrate Judge Thomas Coffin issued a Finding and Recommendation that the request for interlocutory appeal be denied. … More

Perhaps It Should Be Renamed the “Really, Really, Endangered Species Act”

Last Friday, the 9th Circuit Court of Appeals affirmed a District Court decision ruling that the Fish & Wildlife Service decision that listing of the whitebark pine as endangered or threatened was “warranted, but precluded” was not arbitrary and capricious.  The decision seems correct, but as the frustration of the Court reflects, it’s only because the ESA is designed to fail.

The procedural history is lengthy and not really necessary to repeat here. … More

It’s Wise to Make Certain that Contracts Properly Allocate Future Environmental Compliance Costs

Last week, the 6th Circuit Court of Appeals ruled that AEP, which entered into a consent decree requiring it to install certain pollution controls at its Rockport 1 and 2 power plants, could not force the owner of those plants to pay to install the controls.  The case involved the interpretation of specific contractual language under New York law, but it still has lessons for power plant owners and operators everywhere.… More

Does Chevron Ever Permit EPA to Rewrite a Statute? EPA’s Release Reporting Exemptions Are Struck Down

On Tuesday, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations.  The Court found that EPA had no statutory authority to exempt AFOs from the reporting regulations.

The decision is also important because it is another in a recent line of cases regarding the extent of agency authority to interpret statutes.  The issue was whether EPA had authority to exempt smaller AFOs from reporting requirements,… More

Should Courts Defer to EPA’s Scientific Expertise if EPA Gets Rid of Its Expertise?

Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate.  I think that the result is both correct and unsurprising.

However, one part of the opinion – a recitation of black-letter law – caught my eye.  In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.”  No surprise there. … More

Six Years in the Making, New Ch. 91 Flexibility Washes Ashore

Last month, MassDEP and the Massachusetts Office of Coastal Zone Management released long-awaited revisions to the regulations governing waterfront development in Massachusetts (the Chapter 91 regulations, the Designated Port Area regulations, and the Municipal Harbor Plan regulations).  The changes have been in the works since 2010, when MassDEP and CZM first convened working groups to review whether the regulations could be revised to provide greater flexibility to accommodate a variety of uses along the waterfront. … More

McDonalds Won’t Be Serving Utah Prairie Dog Burgers Any Time Soon

On Wednesday, the 10th Circuit Court of Appeals held that regulation of takes of the Utah prairie dog, a purely intrastate species, does not violate the Constitution.  Reversing the decision below, the 10th Circuit joined all four other circuit courts to have dealt with the issue thus far in upholding the ESA against such Commerce Clause challenges.

I will note that I predicted this outcome when the District Court case was decided,… More

The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More

Promulgation of TMDLs Does Not Create a Non-Discretionary Duty to Require NPDES Permits

When EPA approved total maximum daily loads for the Charles River, but failed to require NPDES permits for persons discharging stormwater to the Charles, CLF sued.  CLF alleged that EPA violated a non-discretionary duty when it failed to require the permits.  Last Friday, Judge Richard Stearns dismissed CLF’s suit.

EPA’s regulations provide that it will issue NPDES permits where it:

Determines that the discharge,… More

Court Orders EPA to Promulgate Air Toxics Standards: A Taste of What’s to Come?

On Wednesday, federal Judge Christopher Cooper ordered EPA to promulgate emissions standards for 13 sources of hazardous air pollutants by June 30, 2020.  EPA admitted that it missed statutory deadlines to do so; the only argument was over how much time EPA should have.  EPA asked for 4 ½ years, while the plaintiffs suggested two.  Judge Cooper pretty much split the difference.

Why is the case important? … More

The Conservative Case for Chevron Deference, Chapter 3 (Plus an Auer Bonus!)

The conservative cases in support of Chevron deference keep arriving.  This week, the 9th Circuit Court of Appeals affirmed EPA’s federal implementation plan for compliance with its regional haze regulations by the Navajo Generating Station, which is apparently the largest coal-fired power plant in the western United States.  Environmentalists challenged the FIP on a number of grounds, including EPA’s decision to grant Navajo Generating emission credits for some early NOx reductions as well as the amount of time the FIP gave the facility to attain the required reductions.… More

The Executive Order on the WOTUS Rule: Will It Really Reduce Regulatory Uncertainty?

On Tuesday, President Trump issued another executive order on the environment, this time directing EPA to revisit the EPA rule defining Waters of the United States under the Clean Water Act.  It’s a curious order, for a number of reasons.

First, Section 1 of the EO states as “Policy” that “minimizing regulatory uncertainty” is in the national interest.  Well, the purpose of the WOTUS rule was pretty much to reduce the regulatory uncertainty surrounding the definition of WOTUS. … More

Managing Water Releases From Dams to Protect Fish: A Tale of Good Legislation and Bad Engineering

Earlier this week, the 9th Circuit found that the Bureau of Reclamation had authority under 1955 legislation to order additional releases of water to the Trinity River from the Lewiston Dam beyond the amount designated in an official release schedule, where necessary to protect downstream fish populations.  The Court basically held that general language in the 1955 Act trumped later legislation that seemed to prescribe or at least authorize more limited releases.… More

The Latest on the DEP’s “Pile Policy”: If the Tides Rise, Do Structures Still “Exist”?

Back in September, we wrote about MassDEP’s Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the “project shoreline” — the outer boundary of a development proposal.  The issue that the policy seeks to address arose as the DEP reviewed an application for a Chapter 91 license for Lewis Wharf in Boston.  … More

EPA Has a Nondiscretionary Duty to Review West Virginia’s Failure to Submit TMDLs

Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity.  Ionic toxicity is a consequence of mountaintop removal coal mining.  In case you weren’t aware, the coal industry has a certain amount of political clout in the Mountain State (and can they keep the nickname if they chop the tops off of all of their mountains?).… More

Six 5th Circuit Judges Oppose USFWS’s Critical Habitat Designation: Sounds Like Certiorari to Me

The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog.  There are only 100 of these “shy” frogs left, and none of them live in the area in Louisiana designated as critical habitat by the FWS.

The focus of the panel decision – and both the panel dissent and the dissent from the denial of en banc review – was whether private land could be considered critical habitat for the dusky gopher frog if no frogs live in the area and the area could not currently support the frog.… More

EPA Wins Another Round In PSD Litigation: More Evidence that the Program Is Flawed.

Last Monday, in a comprehensive, 189-page opinion, Judge Rodney Sippel ruled that Ameren Missouri had violated EPA’s PSD regulations by failing to get permits for upgrades in 2007 and 2010 at its Rush Island facility.  As I noted when Judge Sippel denied cross-motions for summary judgment, the result is not really a surprise.

Moreover, Judge Sippel’s decision is not based on any extreme reading of the law. … More

The Conservative Case For Chevron Deference

With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs.  Put simply, I don’t get it.  There are at least two good reasons why conservatives should prefer Chevron deference to no deference.

First, the alternative is for courts to decide all questions of agency authority.  But haven’t conservatives railed against unelected judges for years? … More

The NSR Regulations Still Make No Sense: The 6th Circuit Reverses the DTE Decision Based on a 1-Judge Minority Opinion

Last week, the 6th Circuit Court of Appeals reversed – for the second time – a District Court decision granting summary judgment to DTE Energy in the United States’ case alleging that DTE Energy had violated EPA’s NSR regulations.  According to the 6th Circuit, EPA has authority to bring an enforcement action against DTE Energy, notwithstanding that the regulations don’t provide for EPA review of DTE Energy’s emissions projections prior to construction and also notwithstanding that the project did not in fact result in a significant net emissions increase.… More

EPA Wins a Round Against CLF in Residual Designation Authority Litigation

Earlier this week, Judge Mary Lisi, of the District Court of Rhode Island, dismissed the Conservation Law Foundation’s Residual Designation Authority law suit against EPA.  CLF had asked the Court to order EPA to require permits from stormwater dischargers alleged by CLF to be contributing to exceedances of the Total Maximum Daily Load established by Rhode Island for certain impaired water bodies. spectacle-pond

CLF alleged that EPA’s approval of the TMDLs constituted a determination that certain stormwater dischargers were contributing to exceedances of water quality criteria and that the controls on these dischargers are necessary to meet the TMDL and thus attain the water quality criteria.… More

Some Regulations to Reduce GHG Emissions Probably Won’t Be Rolled Back By the New Administration.

This week, the Department of Energy finalized regulations to increase energy efficiency for central air conditioners and heat pumps.  heat-pump-acThe regulations apply to products manufactured or imported into the United States beginning in 2023.  DOE estimates that, over the following 30 years, the regulations will reduce GHG emissions by 188.3 million metric tons, and will also result in similarly substantial reductions in emissions of conventional pollutants.… More

Did Trump’s Election Increase the Odds of NPDES Delegation in Massachusetts? I Sure Hope So.

As I noted last spring, the Baker administration had filed legislation to support NPDES delegation to Massachusetts.  At the time, I supported the delegation effort and pleaded with my friends in the environmental community to support it.  Sadly, my pleading fell on deaf ears and the legislation was not enacted.

In supporting the legislation, I pointed out that it would be foolish to oppose delegation on the ground that a Democratic administration in Washington would do a better job protecting the environment from evil polluters than a Republican administration in Boston.  … More

Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain.  However, that does not mean that MassDEP can simply take the easy way out.  After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain,… More

EPA Surrenders in the Regional Haze Dispute With Texas

As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze regional-haze-2plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA announced yesterday that it was seeking a voluntary remand of the final rule. You don’t have to be privy to any confidential information to draw the conclusion that a certain election on November 8 rather drastically reduced EPA’s leverage in those negotiations.… More

DEP Is Trying to Implement Kain. How Are They Doing?

When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in Massachusetts, I sympathized with the difficult task MassDEP was given.  To DEP’s credit, they are working hard, determined to get draft regulations out by mid-December.

I still sympathize, but evidence to date only demonstrates further that Kain was a mistake and it’s forcing a waste of resources at MassDEP and a misallocation of attention if we really want to attain further significant GHG reductions in Massachusetts. … More

A Reminder of the Progress We’ve Made

A car makes its way amidst the heavy smog in New DelhiGiven how easy it can be to get discouraged about progress in addressing climate change, I think it’s helpful periodically to remember how much progress the U.S. has made in fighting air pollution.  It thus seemed useful to note this story about current conditions in New Delhi, where PM levels are so high that one million (!) students are being kept home from school.

It’s also helpful to remember the tension inherent in the climate change fight.  … More

The Army Corps Is Nicer Than I Am

After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home.  The statute does not require the Corps to issue JDs.  To me, if the Corps is going to subject itself to litigation every time it issues a JD, it might as well just stop.  … More

Transportation CO2 Surpasses Power Sector CO2: Good News or Bad?

Last week, DOE announced that transportation sector CO2 emissions in the US exceeded power sector CO2 emissions for the first time since 1978.  co2-sources-since-1973Why?  The combination of increasing vehicle miles traveled in the transportation sector and the decreasing use of coal in the power sector is certainly most of the answer.

The real question is whether this is good news or bad news.… More

It’s Foreseeable That More Species Will Be Listed Under the ESA Due to Climate Change

The drumbeat of cases, either approving agency action under the ESA – or reversing agency refusal to act – due to habitat alteration resulting from climate change continues to grow.  In February, the 9th Circuit reversed a district court decision and approved the Fish and Wildlife Service’s designation of critical polar bear habitat.  In April, Judge Christensen of the District of Montana vacated FWS’s decision to withdraw a proposed listing of the wolverine. … More

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the ESA.  Bowing to the inevitable, the FWS has now published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.… More

EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort Professors Everywhere Get Excited

On Monday, EPA promulgated amendments to its “Exceptional Events” Rule.  The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of the ozone NAAQS.  EPA’s most significant revision was to eliminate the requirement that state air agencies demonstrate that, “but for” the exceptional event, the state or relevant area would have complied with the applicable NAAQS.  The change is important for two reasons. … More

Governor Baker’s Executive Order on Change: Good News; Still Work To Be Done By MassDEP

Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.”  tide-surgeEO 569 will advance climate policy in Massachusetts in a number of important ways.  It also leaves much to be accomplished by MassDEP.  Here are the highlights:

  • EOEEA and MassDOT are instructed to work with other New England and Northeastern states to develop regional policies to reduce GHG emissions from the transportation sector.…
  • More

DOE and DOI Release the New National Offshore Wind Strategy: Perhaps Prosperity Is Finally Just Around the Corner

Last Friday, DOE and DOI issued an update of their National Offshore Wind Strategyoffshore-windIt’s a moderately aggressive strategy, seeking to deploy at least 86 gigawatts of offshore wind by 2050.  The report highlights both the significant opportunities and potential for growth and also some of the remaining potential roadblocks.

On the plus side:

  • The combination of fossil retirements and demand growth provide significant incentive for offshore wind development.…
  • More

A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead.  In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants biomassfrom such redefinition of the source. … More

I Hate Home Rule

Massachusetts is a Home Rule state (Commonwealth, actually, but that’s a separate issue).  Our 351 cities and towns can pretty much legislate as they please, so long as the local action is not preempted.  Our state Wetlands Protection Act specifically allows municipalities to enact their own wetlands bylaws.  The result?

Today, our Appeals Court rejected an appeal from a property owner, and instead affirmed the Wayland Conservation Commission’s conclusion that the owner’s property contains wetlands as defined under the Wayland bylaw,… More

The Arbitrary and Capricious Standard Remains Deferential: The Corps’ Nationwide Permit 21 Survives Review

Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404.  black-warrior-river

The plaintiffs argued that NWP 21 was arbitrary and capricious because the Corps imposed numeric limitations on new projects – and described those limitations as “necessary” to prevent more than minimal environmental harm – but did not impose those same numeric limitations on existing projects.… More

The Social Cost of Carbon Passes Its First Judicial Test

Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment.  This is a big deal in its own right, simply because the numbers are really large – according to DOE, the rule will save 2.89 quadrillion BTUs over the lifetime of equipment purchased under the rule.  It’s a reminder that energy efficiency remains a key to reducing carbon emissions.… More

A Foolish Consistency Is the Hobgoblin of Little Minds: So Said Emerson, So Says EPA

On Wednesday, EPA issued a final rule amending its “Regional Consistency Regulations.”  The new rule provides that EPA will only follow adverse judicial decisions in the areas of the country where such judicial decisions are applicable.  Emerson1859

Previously, EPA’s Clean Air Act regulations specifically required EPA to “assure fair and uniform application [of the CAA]  by all Regional Offices.” As I previously discussed,… More

Massachusetts Legislature Enacts Significant Energy Bill in Support of Offshore Wind and Hydro Procurement, Storage and Transmission

windmill-181286_960_720559474_45240941

Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the Senate’s more comprehensive “omnibus” bill. It is expected Massachusetts Governor Charlie Baker will sign the legislation shortly. After that, regulations will be required to be implemented and other regulatory actions will need to be taken by Massachusetts’ Department of Public Utilities,… More

Chevron Deference Lives! EPA’s Boiler Rule (Mostly) Survives Review

On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule.  boiler-mactThe industry challenges were a complete washout.  The environmental petitioners won one significant victory and a number of smaller ones.

The environmental petitioners’ one significant victory is important.  EPA included within relevant subcategories any source that burns a fuel containing at least 10% of the “subcategory-defining fuel.”  However, for defining MACT, EPA included only those sources that burn fuel containing at 90% of the subcategory-defining fuel for existing sources,… More

Forecast is Hazy For EPA’s Regional Haze Oversight Authority

Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan.  The opinion is a thorough rejection of EPA’s decision.  Although this was only a stay order, I would rate EPA’s likelihood of ultimately prevailing on the merits as approximately zero.  There are a number of significant take-aways from the decision:

  • EPA’s assessment of regional haze SIPs is not generally of “nationwide scope or effect” and therefore will be subject to review in the court of appeals responsible for the state at issue,…
  • More

Three Strikes and Mingo Logan Is Out: The D.C. Circuit Affirms EPA Withdrawal of Approval of Mountaintop Removal Disposal Sites

In 2013, the D.C. Circuit affirmed EPA’s authority to withdrawal approval of mountaintop mining disposal sites, even after the Army Corps has issued a Section 404 permit.  In 2014, the District Court rejected Mingo Logan’s challenge to EPA decision on the merits, finding that EPA’s withdrawal was not arbitrary and capricious.  Finally, early this week, the D.C. Circuit affirmed the District Court,… More

The Antarctic Ozone Hole Is Healing. Full Stop.

An article published Friday in Science reports that the Antarctic ozone hole ozonemaximagereleaseis healing.  As the article notes, there was some previous evidence about global improvement in stratospheric ozone levels, but this is the first to document improvement in Antarctica.

Aside from the fact that good news is always welcome, it’s also a useful reminder that environmental regulation can work.  In the developed world,… More

Massachusetts Energy Bill Emerges from Senate Committee on Ways and Means

windmill-640x426-1Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore wind power by 2027 and 9,450,000 MWH of hydroelectric power by 2022, the Senate’s version would require 2,000 MW of offshore wind by 2030 and 12,450,000 MWH of “clean energy generation” by 2018.… More

BLM Has No Authority To Regulate Fracking, At Least For Now

Yesterday, Judge Scott Skavdahl of the District of Wyoming held that the Bureau of Land Management did not have authority to regulate the environmental impacts of fracking.  frackingI think Judge Skavdahl probably got it right, but I also think it’s a much closer question than the Judge acknowledged and I could imagine either the 10th Circuit or the Supreme Court reaching a different conclusion.

Judge Skavdahl first reviewed the various statutes cited by BLM as providing authority for the rule. … More

Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.

If you needed any further proof that energy elec_mag_fieldlaw is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you.  The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:

no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions;… More

NEPA Does Not Require An Agency To Guarantee Project Compliance with Environmental Laws

In an interesting decision last week, the 9th Circuit Court of Appeals rejected challenges to BLM’s decision to issue a right-of-way permit for Tule Wind’s plan for a wind farm southeast of San Diego.  tule-support-buttonIt’s not exactly earthshattering, but it is a helpful decision both for decisionmakers reviewing wind farm applications and for wind farm developers.  Here are some of the highlights:

  • BLM’s inclusion of DOI’s goal under the 2005 Energy Policy Act to increase nonhydropower renewable energy on federal lands as part of the “purpose and need”…
  • More

One Final Word on Peterborough Oil: Yes, MTBE Is An Additive

The final answer to the critical issue raised by the recent Peterborough Oil Company decision is that MTBE is an additive and is not, in MassDEP’s view, subject to the “oil exemption” under the Massachusetts Contingency Plan.

I have to say that I’ve done few posts in recent years that have prompted more immediate responses than those on this case.  After yesterday’s little birdie suggesting that MassDEP might be taking the position that MTBE is subject to the oil exemption,… More

More on the Peterborough Oil Case: Is MTBE An “Additive”?

Since yesterday’s post on the Peterborough Oil case, a little birdie told me that MassDEP may be taking the position that MTBE mtbeis covered by the “oil exemption”, because it is a hydrocarbon.  If so, that would be good news for PRPs, because most cleanups don’t involve third parties.  If MassDEP says that MTBE is covered by the exemption, then a PRP cleaning up a site with an “oil” release containing MTBE could still close out the site based on the MassDEP interpretation.… More

When Is Gasoline Not Oil (At Least In Massachusetts)? When It’s Leaded, Of Course.

Unlike CERCLA, the Massachusetts Superfund law, Chapter 21E, does include oil within its ambit.  However, oil is not treated exactly the same as hazardous materials.  One difference is that, in 2007, MassDEP revised the Massachusetts Contingency Plan to provide that, in certain circumstances, where “Contamination is limited to oil,” the exposure point concentration is measured at the Public Water Supply well, rather than in each of the monitoring wells, as is otherwise the case.… More

If You Don’t Like Nukes, Petition Congress: The D.C. Circuit Affirms the NRC’s GEIR On Nuclear Waste Storage

On Friday, the D.C. Circuit Court of Appeals rejected challenges by several states and the NRDC to the Nuclear Regulatory Commission’s Generic Environmental Impact Statement analyzing the impacts of continued on-site storage of spent nuclear fuel.  Yucca MountainThe decision is largely a plain vanilla application of Administrative Procedure Act deference to agency decisionmaking, but there were a few interesting nuggets.

  • The Court agreed with the NRC that the GEIR itself was not a licensing action,…
  • More

Corps Jurisdictional Determinations Are Final Agency Action: Now What?

In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” Wetlandsare final agency action subject to judicial review under the APA.  As we previously noted, this continues the Court’s emphasis on the practical consequences of Corps decisions.  Indeed, Chief Justice Roberts noted that the Court’s decision:

Tracks the ‘pragmatic’ approach we have long taken to finality.… More

The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: Yikes!

On Tuesday, the Supreme Judicial Court ruled that MassDEP had violated the Global Warming Solutions Act progress-on-2020-planby failing

To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year,… More

Three Strikes and the Commonwealth Is Out: The Natural Gas Act Preempts Article 97

Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed to Tennessee Gas Pipeline Company for construction of a gas pipeline to be built in part through Otis State Forest.  otis-state-forest-entrance-bc84d8e7cbd761ea

Not only did Judge Agostini conclude that Article 97 is preempted,… More

EPA’s Final Methane Rule: Fighting Climate Change Up to January 20, 2017 — And Beyond

Dylan Thomas dylan-thomas-chair_2891799csaid “Do not go gentle into that good night.”  Obama’s EPA is taking that advice to heart, pushing forward aggressively on its climate change agenda, even as January 2017 approaches.  On Thursday, EPA issued its final rule promulgating New Source Performance Standards for methane emissions from oil and gas facilities.  The lengthy and complex rule is too long to summarize here, but you can find the Cliff Notes version in EPA’s fact sheet.… More

Better Late Than Never: Massachusetts Moves to Obtain NPDES Delegation

Like most federal environmental programs, NPDES program authority is largely delegated to the states.  Only four states aren’t delegated:  Idaho, Massachusetts, New Hampshire, and New Mexico.  How is it that progressive Massachusetts, always confident that it can do environmental regulation better than anyone else, never obtained delegated authority?

Like Tevye, I’ll tell you.  I don’t know.

I do know that it’s good news that Governor Baker just submitted legislation necessary for Massachusetts to assume NPDES delegation. … More

Coming Soon To A Roof Near You: Solar Panels (At Least If You Live in SF)

This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or solar thermal systems.  solar_homes_310x224I’m not an expert in the California Code of Regulations, so I’m not familiar with all of the potential exemptions, but the only one stated in the new ordinance is for buildings (residential or non-residential) with a “solar zone” of less than 150 contiguous square feet.… More

Stop the Presses! EPA Still Thinks that the MATS Rule Is a Good Idea

Last week, EPA issued its “Supplemental Finding”, confirming that it still believes that its Mercury and Air Toxics Standards matsare “appropriate and necessary.”  I don’t have much to add to our post at the time of the proposed Supplemental Finding.  In short, the Supplemental Finding isn’t going to change anyone’s mind, but it should be sufficient to withstand judicial review as long as the courts still believe in Chevron deference.… More

Big Changes With Little Fanfare: The FHWA Proposes to Use GHG Emissions as a Performance Measure

This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects.  The requirement for performance measures stems from the Moving Ahead for Progress in the 21st Century Act, aka MAP-21.  MAP-21 requires the FHWA to establish performance standards in 12 categories, one of which is “on-road mobile source emissions.”  MAP 21

The NPRM addresses this criterion,… More

MassDEP and CZM Propose Changes to Chapter 91 Regulations

DEP CZMMassDEP and the Commonwealth’s office of Coastal Zone Management recently proposed draft changes to the Designated Port Area and Facility of Public Accommodation regulations under the Chapter 91 program. The draft for public comment, including a summary of the changes and redlines of the regulations, can be found here. Information on submitting public comments can be found here. Comments are due by Monday,… More

A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?

Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust Mosaic_of_Justinianus_I_-_Basilica_San_Vitale_(Ravenna) (1)case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.

The complaint here is similar to, but broader than, others of its ilk.  As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere. … More

EPA Continues to Dismantle Clean Air Act Affirmative Defenses — Blame It On the Judge(s)

On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register.  EPA describes most of the changes as “technical corrections,” but there is one important substantive change.  EPA has deleted the affirmative defense for violations caused by equipment malfunctions.

The change follows EPA’s 2015 SIP call requiring states to delete affirmative defenses for violations related to startup, shutdown, or malfunction SSMevents. … More

Climate Change and the ESA: Protecting the Wolverine in the Face of Uncertainty

Under the Endangered Species Act, a species is “threatened” when it is “likely to become an endangered species within the foreseeable future.”  As scientists continue to predict that climate change will alter habitat over the coming century, it certainly seems “foreseeable” that more species will become endangered.  That’s what the Fish & Wildlife Service concluded about the wolverine WolverineSnowin early 2013.  When FWS backtracked in 2014, Defenders of Wildlife sued. … More

CSAPR > BART: The Eighth Circuit Affirms Minnesota’s Regional Haze Plan

Environmental lawyers live for acronyms.  Why is CSAPR > BART?  Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards attaining EPA’s regional haze goals than would application of best available retrofit technologies to those sources that would otherwise be subject to BART.  On Monday, the 8th Circuit agreed that EPA’s decision that the Transport Rule is better than BART was not arbitrary or capricious.… More

The Ninth Circuit Approves the FWS Polar Bear Critical Habitat Designation

On Monday, the 9th Circuit reversed a district court decision that rejected the critical habitat designated by the Fish and Wildlife Service for protection of the polar bear, polar-bear-cub-on-momwhich was listed as threatened in 2008.  The case is largely a straightforward application of accepted Endangered Species Act principles, but does make a few important points.

As the 9th Circuit pointed out, the district court’s logic was flawed. … More

EPA’s Charles River Two-Step

charles15At least since the Standells’ Dirty Water in 1966, cleaning up the Charles River has been on the mind of Bostonians (and Cantabrigians and those farther upriver).  Notwithstanding significant recent progress, there remains work to do.  The questions are, as always, how much and who pays?  Is this largely a municipal infrastructure problem?  Is it just a matter of better implementation of some simple best management practices? … More

NSR Enforcement Staggers On: A Split Decision in Missouri

Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power plant.  Rush IslandTrue, the court denied EPA’s motions for summary judgment.  However, it also denied Ameren’s motions and on balance probably left EPA feeling better than Ameren about its prospects at trial. … More

In Cooperative Federalism, Who Gets Deference, EPA or the States? Can you say “Federal Supremacy”?

Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze grand canyonrequirements and instead promulgate its own federal implementation plan.  The decision has a number of interesting elements and is well worth a read, but it’s most notable for its treatment of the deference issue.

We all know that courts defer to reasonable agency decision-making. … More

The Writing on the Wall Moves to the Federal Register: No 30-Year Take Permits

As we discussed last summer, the Judge Lucy Koh of the Northern District of California ruled that the Fish and Wildlife Service’s 30-year programmatic permit for incidental takes of bald and golden eagles SOARING EAGLE-1000 pixels widefrom wind farms violates NEPA.  This week, FWS bowed to reality and revised the permit to change the term to five years.

No word on any efforts by FWS to provide the necessary analysis under NEPA that might justify a 30-year term. … More

Prognosticating the Ozone Standard Litigation: EPA to Win, Environmental Petitioners to Place, Murray Energy to Show

Earlier this week, the “Public Health and Environmental Petitioners” challenging EPA’s decision not to reduce the ozone Ozone_Molecule_Formulastandard below 0.070 ppm filed their “Non-Binding Statement of Issues.”  My crystal ball still tells me that the most likely outcome is that the Court of Appeals upholds EPA’s 0.070 ppm standard.

I do think that the Public Health and Environmental Petitioners have a better case than Murray Energy (which filed its Statement of Issues late last year). … More

Good Law Catches Up With Good Policy: The Supreme Court Upholds FERC’s Demand Response Order

The Supreme Court today affirmed FERC’s Order No. 745, which required that demand response resources be treated the same as generation resources when participating in wholesale electricity markets.  I’m feeling vindicated, because the post-oral argument prognosticators said that it looked bad for FERC, but I always thought that FERC had the stronger argument.

As I noted after the D.C. Circuit struck down Order No.… More

Massachusetts Updates Its Climate Song: I Can Get By With A Little Help From My (Canadian) Friends

Earlier this week, Massachusetts released its updated Massachusetts Clean Energy and Climate Plan for 2020.  The headline for the press release was “Massachusetts on Track to Meet 25% Greenhouse Gas Reduction Target for 2020”.  The slightly more nuanced version is that we can do it, but only with a large dose of Canadian hydropower.

While that’s the main take-away, it really is a useful report,… More

Does the Paris Agreement Provide EPA With Authority Under the CAA To Impose Economy-Wide GHG Controls? Count Me Skeptical

In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG emissions reduction regulations that would be more comprehensive and efficient than EPA’s current industry-specific approach.  And what, you may ask, is § 115?  Even the most dedicated “airhead” has probably never worked with it.… More

Courts Must Determine The Economic Benefit Of Noncompliance In Assessing CWA Penalties

It is well-known that the “economic benefit of noncompliance” is one of the factors to be evaluated in setting penalties under the Clean Water Act.  Thus, it is not surprising that, after an oil spill at Citgo’s facility in Lake Charles, Louisiana, LakeCharlesHorizontalthe 5th Circuit Court of Appeals was unhappy when the District Court “did not quantify the economic gain to Citgo, finding it virtually impossible to do so given the evidence.”  The 5th Circuit directed the District Court to “consider its analysis of the [penalty] factors afresh after making a reasonable approximately of economic benefit.”… More

The Paris Agreement: Ac-cent-tchu-ate The Positive

So COP21 resulted in an agreement.  What’s a poor in-the-trenches lawyer to make of it?  I think it’s pretty clearly a major step forward and reflects much more substantive progress than might have been expected.  For a very helpful summary as to why the Paris Agreement was a success, check out Rob Stavins’s post.  As good as Rob’s summary is, Elizabeth Kolbert in the New Yorker (subscription required) had a slightly more concise explanation why the Paris Agreement is a good thing:

It changes the presumption that carbon emissions will continue to grow to the presumption that they must soon start coming down.… More

I’ll Go Out On A Limb; The CPP Will Not Be Stayed

I finally caught up with the brief filed by the government last week, opposing the motion to stay the EPA Clean Power Plan rule, pending full judicial review.  I just don’t see the stay being granted (of course, I did not see it coming with the WOTUS rule, either, so I’m not quite infallible).  The motion should fail on both the irreparable injury and public interest prongs of the test for issuance of a stay.… More

What Is a Water of the United States? EPA and the Corps Make It Easier To Know What They Think

While the litigation over the WOTUS rule wends its tortuous way through the courts, EPA and the Corps have not been idle.  Earlier this month, they jointly issued a memorandum on their plans for improving the permitting process.  Among other measures, they have reemphasized their commitment to transparency, by making all jurisdictional determinations available on a single web site.  The web site is now up and running and includes all JDs issued beginning in September.… More

MATS, Take Two: EPA Still Supports the Rule (And EPA Is Correct)

Late last week, EPA issued a Supplemental Finding, concluding that it is still “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired electric generating units.  The Supplemental Finding was necessary after the Supreme Court ruled earlier this year that EPA’s original decision to regulate HAP emissions from EGUs was flawed because EPA did not consider costs in making the decision.  Is the Supplemental Finding enough to ensure that the Mercury and Air Toxics rule mercuryis upheld this time around?  … More

Coming Soon to a Project Near You: Advance Compensation

Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.”  mitigationsignIf that portentous title isn’t enough to make developers quiver in their boots, how about this first line?

We all have a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.… More

When Is A Discharge to Groundwater a Discharge to a Water of the United States?

The Clean Water Act regulates discharges of pollutants to waters of the United States.  That term is not understood to include groundwater.  The Sierra Club was unhappy about alleged discharges to groundwater from coal ash disposal facilities at the Chesapeake Energy Center power plant.  chesapeake-energy-center-aerial-highres-RESIZEDThe plant had a solid waste permit for the disposal facilities under Virginia law and, one can at least infer, was in compliance with the solid waste permit.… More

The Sixth Circuit Stays the Waters of the United States Rule: Just a Plain Vanilla Preliminary Injunction — Not!

Today, the Sixth Circuit Court of Appeals issued a nationwide stay against implementation of the “Waters of the United States” rule.  The case is so weird, alice in wonderlandin so many ways, that I don’t even think I can count them.  Here are a few.

  • The Court stayed the case, even though, as the dissent pointed out, there is question whether it even has jurisdiction to hear the appeal.…
  • More

Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the Administrative Procedure Act.  Now, in Ron Foster v. EPA, Judge John Copenhaver of the Southern District of West Virginia has ruled that Sackett’s victory was in fact hollow,… More

EPA Updates Effluent Limitations Guidelines and Standards For Steam Electric Generating Facilities – It’s Only Been 33 Years

On September 30, EPA released its long-awaited (long-feared?) final rule governing wastewater discharges from steam electric generating facilities.  2000px-Coal_fired_power_plant_diagram.svgThe trade press is presenting the rule as a victory for environmentalists (The Law360 headline was “Enviros Score Major Win in Final EPA Effluent Rules”) and I think that that’s probably a fair description.

Here is the quick summary of just the more important aspects of the rule for existing sources:

  • The most stringent aspects of the rule apply to coal-fired plants with a nameplate capacity great than 50 MW (there are less stringent requirements for oil-fired facilities and smaller coal-fired facilities)
  • For fly ash transport water,…
  • More

EPA Lowers the Ozone Standard to 70 PPB: Industry Isn’t Happy, But It Should Be

On Thursday, EPA finally released its final rule revising the ozone NAAQS to 70 ppb.  I do not spend much time peering into a crystal ball, fortune-teller with a shining crystal ballbut I will go out on a limb and say that the industry challenges to the rule will fail. Just ain’t gonna happen.

The environmental group challenges pose a more interesting question.  There’s a fair bit of evidence of health impacts below 70 ppb,… More

Record Review Means That EPA Must Refer To the Record: The Third Circuit Remands EPA’s Approval of the Pennsylvania Regional Haze SIP

On Tuesday, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze hazeSIP.  The decision is a must-read for practitioners.  It decides some important issues and provides important reminders for EPA and the states on how to build a record and how to justify decisions – or not! – based on that record.

Although seen as a defeat for Pennsylvania and the large sources subject to the regional haze rule,… More

Can EPA Keep Winning By Losing? Another Court Remands An EPA Rule Without Vacatur

Last Wednesday, the D.C. Circuit Court of Appeals remanded EPA’s rule exempting stationary engines that operate up to 50 hours per year to supply non-emergency service to power providers from the EPA NESHAP for reciprocating internal combustion engines.  Why is that news?

Because, once more, a court has acceded to EPA’s request that it remand without vacatur, leaving the rule in place.  We’re now seeing something of a trend towards remand without vacatur. … More

Perhaps Massive Purchases of Canadian Hydropower Would Not Be a Panacea

Governor Baker recently submitted Senate Bill No. 1965 to the Legislature.  It calls for utilities to solicit long-term purchases of renewable energy.  We are talking about as much as 1/3 of Massachusetts’ annual electricity use over a 15-25 year period.  Two rationales are often provided to justify the large purchase of Canadian hydropower.  First, cheap hydropower will ameliorate the high cost of electricity.  Second, it will help Massachusetts attain its initial Global Warming Solutions Act goal of reducing GHG emissions by 25% below 1990 levels by 2020. … More

Chicken Little Cannot Compare to the Opponents of the Clean Power Plan

Yesterday, the D.C. Circuit Court of Appeals dismissed the latest effort to stay EPA’s Clean Power Plan before it has even been promulgated in the Federal Register.  The Court simply stated that “petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

Really?  Tell me something I did not know.

I’m sorry.  The CPP is a far-ranging rule. … More

Perhaps EPA’s NSR Enforcement Initiative Is Now Dead? EPA Loses Another

Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat.  After the latest blow, earlier this month, EPA has to be reconsidering.  I assume that EPA won’t give up completely until it has lost everywhere or the Supreme Court has weighed in, but the NSR initiative is definitely on life support at this point.… More

Two Days, Three Decisions, One Big Mess: Welcome to Judicial Review of the Waters of the United States Rule

On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal have original jurisdiction over “any effluent limitation or other limitation.”  Yesterday, Judge Lisa Wood of the Southern District of Georgia agreed.

Later yesterday, Judge Ralph Erickson of the District of North Dakota disagreed. … More

Stop the Presses: RGGI Works

When the Regional Greenhouse Gas Initiative RggiLogo2was first implemented, there were questions regarding how much of an impact it would actually have on GHG emissions.  I recall Ian Bowles, then Secretary of Environmental Affairs in Massachusetts, saying that, while reductions would happen, the main purpose was to provide a template and to demonstrate that an emissions trading program could be implemented successfully.

Those doubts were only heightened when a combination of cheap gas and the Great Recession were understood to have caused low allowance prices in the RGGI auction. … More

Is Superfund a Machine for Manufacturing Tea Party Members?

A group of PRPs received an oversight cost bill pursuant to a CERCLA consent decree.  (The following details are intentionally vague to protect both the innocent and the guilty.)  The bill was for several hundred thousand dollars.  During the year covered by the bill, the PRPs spent no money cleaning up the area of the site covered by the invoice.  They spent little or no money monitoring the area of the site covered by the invoice. … More

The D.C. Circuit Sends EPA Back to the Drawing Board to Fix Its Transport Rule Emissions Budgets

The Clean Air Act’s good neighbor national_good_neighbor_day_zps2a06b34b (1)provision prohibits upwind states from emitting air pollutants in amounts that will “contribute significantly to nonattainment” of a national ambient air quality standard in a downwind state.  On Wednesday, the D.C. Circuit Court of Appeals held that, while upwind states have to be good neighbors, EPA cannot force them to be extraordinarily super-special neighbors.  Just good enough will have to do.… More

EPA Hubris, July 2015 Edition

Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule.  I have not seen the memoranda, but, based on the press reports, it appears that EPA ignored criticism both that it was too stringent in some areas and that it was not sufficiently stringent in others.  … More

The Earth Once More Spins Calmly On Its Axis; EPA’s Updated Hex Chrome MACT Rule Is Affirmed

On Tuesday, the D.C. Circuit Court of Appeals affirmed EPA’s update of its hexavalent chromium Hex chromeMACT rule.  Suffice it to say that this was a little easier than review of the power plant MACT rule.

The Court rejected both industry and environmental group challenges, in what was largely a straightforward application of Chevron.  The opinion is nonetheless useful in laying out what EPA must have in the record to justify ratcheting down MACT standards.… More

The Baker Administration looks to Hydropower to meet GHG goals

The Baker Administration announced on July 9 that it filed a bill for sourcing long-term hydroelectric power in the Commonwealth.  Hydroelectric power currently provides a small portion of electricity consumed  in Massachusetts. According to the Energy Information Administration, it ranks behind natural-gas, nuclear, coal and other renewable energy sources.

The bill, titled “An Act Relative to energy sector compliance with the Global Warming Solutions Act,” would require the State’s electric distribution companies  to solicit proposals for hydroelectric contracts spanning 15 to 25 years. … More

The 10th Circuit Affirms Colorado’s RPS; The Dormant Commerce Clause Remains Dormant

When Colorado enacted a referendum petition strengthening its renewable portfolio standard, the Energy and Environment Legal Institute sued, arguing that the RPS violates the dormant commerce clause, because it harms out-of-state coal producers. The 10th Circuit Court of Appeals, in an opinion by Neil Gorsuch (son of the EPA former administrator), disagreed.  Pretty much telegraphing the outcome in the first sentence, Judge Gorsuch framed the question as follows:

Can Colorado’s renewable energy mandate survive an encounter with the most dormant doctrine in dormant commerce clause jurisprudence?… More

The Problem With Relying on Energy Efficiency to Reduce Emissions? People

The connection between energy use and emissions of air pollutants, including GHGs, is uncontroversial.  It is also widely, if not universally, accepted that there is a lot of low-hanging fruit in energy efficiency.  I agree completely with both propositions.

Nonetheless, a recent article in Energy Research & Social Science (fee required for full article), reported in Tuesday’s Washington Post, provides a useful —… More

Easy Cases Make Good Law: The Third Circuit Affirms EPA’s Chesapeake Bay TMDL

On Monday, the Third Circuit Court of Appeals affirmed EPA’s TMDL for the Chesapeake Bay.  chesapeake-bayThis should not be news.  Although Judge Ambro comprehensively disposed of the appellants’ arguments in a thoughtful opinion, I think that the opinion probably could have been six pages rather than sixty.

The crux of the challengers’ arguments was that a TMDL must consist of a single number specifying the amount of a pollutant that a water body can accommodate without adverse impact. … More

Do Climate Change and Same-Sex Marriage Have Anything in Common?

Recent events have me pondering this question.

Most notably, in two court decisions last week, courts ordered the State of Washington and the government of the Netherlands to take more aggressive action against climate change.  In the Washington case, in response to a complaint from eight teenagers, a trial court judge has ordered the Washington Department of Ecology to reconsider a petition filed by the teenagers requesting reductions in GHG emissions. … More

The Second Installment of our Paris Climate Change Negotiations Tracker

As the date for the Paris climate talks logomoves closer, we have our second installment of our climate negotiations tracker.  This episode discusses the concept of “dynamism” – being able to adjust over time just how ambitious the mitigation goals will be; the mechanism for assessing the Nationally Determined Contributions, or NDCs; the role of non-state actors; and how to differentiate among developed and developing countries.… More

FWS To Authorize Incidental Takes Under the Migratory Bird Treaty Act?

Late last month, the Fish & Wildlife Service issued a Notice of Intent to prepare a programmatic environmental impact statement to evaluate various options for authorizing incidental takes under the Migratory Bird Treaty Act.  Of likely the greatest interest to the regulated community, FWS will consider issuing general permits, with performance standards, for certain industry sectors.  FWS specifically called out the following sectors:

No, Virginia, You Can’t Challenge a Rule that Hasn’t Even Been Promulgated

Easy way to tell when you’ve lost your appeal?  When a pithy judge starts making fun of you in the first sentence of the opinion.  In a case that was only ever going to have one outcome, the D.C. Circuit Court of Appeals today rejected all of the pre-promulgation challenges to EPA’s Clean Power Plan.  Judge Kavanaugh began by noting that:

Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants.… More

If Congress Wants to Limit EPA’s Discretion, Perhaps It Should Do a Better Job Legislating

Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA’s determination of what is a solid waste in the context of Clean Air Act standards for incinerators and other combustion units.  It wasn’t actually a difficult case, but it does provide a lesson for Congress.  When the technical nature of EPA’s decisions was layered on top of the fundamental deference given EPA’s interpretation of the statute under Chevron,… More

Startup, Shutdown, and Malfunction — No Longer Any Automatic Exemptions or Affirmative Defenses

Last week, EPA finally responded to the Sierra Club’s petition requesting that it eliminate exemptions and defenses for excess emissions resulting from startup, shutdown, or malfunction events.  SSMEPA concluded that it needed to issue a SIP call to 36 states requesting that they revise their SIPs to conform to EPA’s current understanding regarding how SSM events should be handled.

The SIP call will require affected states to eliminate three separate types of protection currently given to generators in connection with excess emissions during SSM events:

  • Automatic exemptions
  • “Director’s discretion”…
  • More

Easy Cases Make Better Law — Standing Edition

In an interesting, but not really difficult, decision on Tuesday, the D.C. Circuit Court of Appeals found that the National Association of Home Builders did not have standing to challenge a consent decree pursuant to which the Fish and Wildlife Service agreed to a schedule for moving 251 species from “warranted-but-precluded” status under the ESA to either warranted or unwarranted.  ontheesawaitinglistbannergunnison_sagegrouse_noppadolpao13225The FWS, short of resources to make final listing decisions under the ESA,… More

Kansas Thumbed Its Nose at EPA’s SIP Requirements — How’d That Work Out?

The D.C. Circuit Court of Appeals today rejected Kansas’s challenge to EPA’s disapproval of Kansas’s SIP revisions intended to comply with the Interstate Transport Rule.  The Court found that EPA was not arbitrary or capricious in rejecting Kansas’s SIP, noting that:

The discussion of interstate transport in Kansas’s SIP was only one page long and failed to provide any analysis at all of the downwind effect of its in-state emissions.… More

Half a Loaf May Not Be Too Bad: The 9th Circuit Affirms Most of EPA’s Approval of the San Joaquin Valley SIP

Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley.  ca_san_joaquin (1)While the trade press has been focusing on the partial reversal, I think that EPA won much more than it lost.

What did it lose?  California’s plans for complying with the ozone and PM 2.5 NAAQS relied in part on emissions reductions to be attained as a result of California’s authority under the CAA to impose more stringent mobile source emissions standards than are applicable nationally. … More

MassDEP Has A Lot of Discretion in Implementing the Global Warming Solutions Act

Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, progress-on-2020-planthe Conservation Law Foundation sued the Massachusetts Department of Environmental Protection, seeking a court order requiring MassDEP to:

promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources that emit greenhouse gas emissions.

The Court did not oblige. … More

Is There Any End to Post-Closure Care Under RCRA?

Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA.  hwlf-csIt’s not good news.

Although the Guidance is technically neutral concerning shortening or lengthening post-closure periods, let’s not kid ourselves; this is all about extending post-closure care.  For how long?  How does forever sound?

Why do I think that this is all about extensions?  First, if anyone can give me any examples where EPA has ever decreased this type of monitoring/oversight period,… More

EPA Is Not an Expert in Determining Electric System Reliability

The D.C. Circuit Court of Appeals just reversed and remanded EPA’s rule allowing backup generators to operate for up to 100 hours per year as necessary for demand response.  demand responseIt’s an important decision that could have lessons for EPA and the regulated community across a wide range of circumstances, including eventual challenges to EPA’s proposed GHG rule.

EPA said that the rule was necessary to allow demand response programs to succeed while maintaining grid reliability.  … More

The Stormwater Mess Continues in Massachusetts: CLF and CRWA Sue EPA

In February, we noted that the Conservation Law Foundation and the Charles River Watershed Association had threatened to sue EPA for failing to require that “commercial, industrial, institutional, and high density residential property dischargers of nutrient-polluted stormwater” obtain NPDES permits, and for failing to make a final determination on CLF’s and CRWA’s petition that EPA exercise its residual designation authority with respect to stormwater discharges in the Charles River Watershed.  … More

If MassDEP Cannot Promulgate New Regulations Absent Compliance with Executive Order 562, What About Guidance Documents?

For your humble blogger, Executive Order 562, recently issued by Governor Baker, is the gift that keeps on giving.  Receipt of a notice today regarding MassDEP’s consideration of its draft vapor intrusion guidance document made me realize that EO 562 does not, at least on its face, apply to the development of guidance documents.

Why does this matter?

Because the use of guidance in lieu of regulatory development is already a significant problem.  … More

EPA Really Has A Lot Of Discretion In Deciding Whether to Promulgate Water Quality Standards

When a number of citizen groups petitioned EPA to determine that it is necessary under the Clean Water Act to promulgate water quality standards for nutrient pollution in the Mississippi River Basin miss3and the Northern Gulf of Mexico, EPA did not decide to issue the standards.  It did not decide not to issue the standards.  It decided not to decide.  Litigation ensued.

Earlier this week,… More

Here’s Another Nice Mess: Executive Order 562 Claims Its First Victim

Last Friday, I posted about Governor Baker’s Executive Order 562, which requires cost-benefit analysis, cost effectiveness analysis – and more – before state agencies can promulgate regulations.  It took less than a week before it became clear that EO 562 has real teeth.  Yesterday, MassDEP sent out a one-paragraph notice delaying hearings on its proposed Clean Energy Standard, citing EO 562 as the reason:

MassDEP is postponing the hearings and comment period on the proposed Clean Energy Standard rule until it has completed the reviews required under the recent Executive Order 562.… More

There’s Undoubtedly A New Sheriff in Town in Massachusetts

I have never agreed with those in the environmental community who are opposed to cost-benefit and cost-effectiveness analysis.  Cost-effectiveness analysis just seems a no-brainer to me.  As to cost-benefit analysis, we do it implicitly every time we write a regulation, and I don’t understand the unwillingness to do so explicitly.

All of which serves as burying the lede to Executive Order 562, issued by Governor Baker governor-charlie-baker-300x450this week.  … More

What’s a Court to Do When An Agency Admits Error? Vacate? Remand?

In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary.  “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide Permit 21, which allows certain surface coal mining activities without an individual permit, the Army Corps of Engineers informed the Court that it had significantly underestimated the acreage that would be affected by NWP 21. … More

Is Injunctive Relief Available Against Former Owners? At Least One Judge Thinks So.

As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners.  Both United States v. Midwest Generation and United States v. EME Homer Generation held that, because the former owner no longer controls the site, courts cannot impose injunctive relief against them.  As the Court stated in EME Homer Generating:

with time travel yet to be discovered,… More

What’s a Significant Nexus? The Answer, My Friend, Is Flowin’ Through the Ditch.

Even assuming that the “significant nexus” test from Justice Kennedy’s concurring opinion in Rapanos defines waters of the United States subject to Clean Water Act jurisdiction, the question remains what establishes a significant nexus.  In a decision earlier this week, the 4th Circuit Court of Appeals provided some important guidance in answering this question.  The news is good for EPA and the Corps,… More

MassDEP — A Voice of Reason in the Stormwater Permitting Debate

EPA has been working to craft a general permit for small Municipal Separate Storm Sewer Systems for quite some time.  The most recent draft permit, published last September, has received significant comment, most recently from the Massachusetts Department of Environmental Protection.  While emphasizing cooperation and appreciate for EPA’s efforts at collaboration, it is difficult to read MassDEP’s comments as anything other than as a sign of significant concern about overreach by EPA.… More

No Competitors In My Backyard?

In Paradise Lost, John Milton wrote that “easy is the descent into Hell, for it is paved with good intentions.”  road to hellA modern environmental lawyer might say that the road to waste, inefficiency, and obstruction is paved with good intentions.  Nowhere is that more apparent than with citizen suit provisions, as was demonstrated in the decision earlier this week in Nucor Steel-Arkansas v.… More

Déjà Vu All Over Again: CLF and CWRA Try Once More to Get EPA to Regulate Stormwater Discharges to the Charles River

In 2008, EPA made a preliminary determination to use its residual designation authority (RDA) under the Clean Water Act to designate stormwater discharges from two or more acres of impervious surfaces in the Lower Charles River charles15Watershed and released a draft general permit to cover such discharges.  However, EPA never finalized that designation.

In 2013, the Conservation Law Foundation and other groups petitioned EPA Regions 1,… More

General Permits Are Also Entitled to a Permit Shield

On Tuesday, the 6th Circuit Court of Appeals held that the “permit shield” provisions of the Clean Water Act protected ICG hazard from Sierra Club claims that effluent from ICG Hazard’s Thunder Ridge mine thunderridgecoalminecaused exceedances of Kentucky water quality criteria for selenium.  Thunder Ridge is covered by a general permit, not an individual site permit, and the Sierra Club argued that the shield should not apply. … More

Coming Soon to a Settlement Near You: Next Generation Compliance

In a memorandum issued earlier this month, EPA Assistant Administrator for Enforcement Cynthia Giles encouraged use by EPA staff of “Next Generation Compliance Tools” in civil settlements.  Some of the tools are more “next generation” than others, but they all bear watching by the regulated community.  The specific tools highlighted in the Giles memorandum include:

  • Advanced monitoring, including real-time monitoring of ambient pollution levels at the facility fence-line or in the immediate neighborhood
  • Third party compliance verification
  • Electronic reporting
  • Increased public availability of compliance data

To me,… More

It’s All Connected: EPA Finally Determines that the Science Supports an Expansive Definition of Waters of the United States

On Thursday, EPA issued its final report on Connectivity of Streams & Wetlands to Downstream Waters:  A Review & Synthesis of the Scientific Evidence.  The Connectivity report is intended to support EPA’s rule clarifying the definition of waters of the United StatesCorps_Regulatory_Jurisdiction.  I know that groups on all sides will be providing their two cents, but of this I am sure enough to abandon my usual reluctance to speculate:  This report will be more than sufficient to insulate EPA’s final rule from judicial challenge. … More

Is a Clean Energy Standard Coming to Massachusetts? We’ll See What the New Governor Thinks

Last week, the Massachusetts Department of Environmental Protection proposed to implement a “Clean Energy Standard,” which would require that, by 2020, at least 45% of electricity sales come from sources which have “clean energy attributes.”  The required percentage would increase to 49% by 2024, and MassDEP would then have to define percentages going forward at least 10 years in advance, with the caveat that the required percentage can never decrease.… More

EPA Extends The Schedule For Issuing Its Power Plant Carbon Rules

As most readers know, EPA has extended its schedule for issuing its rules addressing GHG emissions from both existing, and new and modified, power plants.  EPA expects to issue the rules in the Summer of 2015.  Only time will tell whether the agency makes the new date.

For those looking for a handy summary of actions to date and EPA’s schedule going forward, EPA has provided a short Fact Sheet which sets out the relevant dates for the various rules.… More

Virginia Proposes Nutrient Trading Regulations: Established Concept, New Medium

This week, Virginia formally proposed Nutrient Trading Certification Regulations.  The program will establish a market in phosphorus and nitrogen removal credits.  Although the program is welcome news, it should be neither earthshattering nor controversial.  After all, as we noted more than two years ago, a study by the Chesapeake Bay Commission demonstrated that use of nutrient trading would substantially reduce the cost of  the Chesapeake Bay restoration project.… More

FERC Will Seek Supreme Court Review of the Decision Striking Down Order 745

Last Friday, FERC sought a further stay of the decision by the D.C. Circuit Court of Appeals striking down FERC Order 745.  Whereas the United States had previously only indicated that it was considering filing a cert. petition, the latest filing clarifies that the United States has definitively decided to seek Supreme Court review.  On Monday, Chief Justice Roberts granted the extension.  The United States now has until January 15,… More

When Is a Solid Waste Not a Solid Waste? An Eternal Question

This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the meaning of a “source” under section 111(d) of the Clean Air Act.  It has also proposed a rule clarifying the definition of “waters of the United States” under the Clean Water Act.  Having dealt with gases and liquids, EPA has turned to solids (it’s a metaphor,… More

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that pollutant.

WildEarth Guardians had sued EPA under section 304(a)(2) of the Clean Air Act, which authorizes suits against the Administrator for a failure “to perform any act or duty … which is not discretionary….”

What was the basis for the alleged nondiscretionary duty? … More

I’m Still a Cockeyed Optimist When It Comes to Climate Change

Last week, NRG Energy announced plans to reduce CO2 emissions 50% by 2030 and 90% by 2050.  And this reduction is not from a 1990 or 2005 baseline; it is from 2014 emissions.  NRG’s statement indicated that it had already reduced emissions by 40% since 2005.  By my math, that means that the 2030 and 2050 reductions would be 70% and 94%, respectively, below 2005 emissions.

If NRG can do it,… More

Massachusetts Climate Adaptation Policy: How Broad Will It Be?

Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.”  However, since I also conceded that Massachusetts courts are unlikely to agree with me, it’s probably worth taking a look at what the Adaptation Policy would require.  As with any MEPA (or NEPA) analysis, it has two parts:  identification of impacts and discussion of mitigation measures.… More

Environmental Impact Analysis — The Impact of a Project on the Environment or the Impact of the Environment on a Project?

Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment.  In Massachusetts, the Executive Office of Energy and Environmental Affairs has proposed a draft MEPA Climate Change Adaptation and Resiliency Policy.  The policy seems sufficiently important to warrant more than one post.  Today, I’ll look at EOEEA’s authority to promulgate an Adaptation Policy.  Tomorrow,… More

Superfund Rant For a New Congress

So the new Congress will be controlled by the GOP.  The House and Senate will consider various bills to rein in EPA authority.  Here’s one relatively modest suggestion for congressional consideration:  amend CERCLA to limit EPA’s authority to recover oversight costs.

How many of us in the private sector have been in meetings with EPA where EPA had more technical people in attendance than the PRPs who were performing the remedy? … More

MassDEP Releases Its Draft Vapor Intrusion Guidance

VI GraphicMassDEP has recently released for public comment draft Guidance on Vapor Intrusion.   The proposed guidance would replace MassDEP’s December 2011 Interim Final Vapor Intrusion Guidance, which saw minor revisions in the spring of 2013.  The guidance has undergone a substantial revision, largely to make changes that correspond to the recent regulatory reforms to the Massachusetts Contingency Plan.

The guidance provides MassDEP’s recommended technical and regulatory approaches to addressing the vapor intrusion pathway at sites contaminated with releases of oil and/or hazardous materials regulated under the MCP.… More

EPA’s Clean Power Plan: Potentially New and Improved?

On Tuesday, EPA issued a Notice of Data Availability, requesting further comment on some specific issues that have been raised since it published its draft Clean Power Plan in June.  My immediate reaction?  My head hurts.

I don’t mean to trivialize the implementation issues that would likely arise if Congress enacted either a cap-and-trade system or a carbon tax, but they’ve got to pale in comparison to the Rube Goldberg-like 2014-09-08-401kfeedisclosuresystem that’s going to be in place once EPA promulgates a final rule. … More

FERC’s Order 745 — Still In Effect For Now

The D.C. Circuit Court of Appeals has stayed its mandate vacating FERC Order no. 745, regarding demand response.  The mandate is stayed at least until December 16, 2014, by which point FERC must petition the Supreme Court for review.  If FERC does seek cert., the stay will continue until the Supreme Court denies the petition or rules against FERC on the merits.

I don’t know if FERC will seek cert. … More

News Flash: Cap-and-Trade Remains the Most Efficient Way to Reduce Emissions

Notwithstanding Congressional gridlock on climate change legislation, cap-and-trade remains the tried and true efficient method for reducing air emissions.  Although the acid rain provisions of the Clean Air Act are the most well-known example, the CAA also provides for cap-and-trade programs to implement its regional haze regulations.  regional hazeOn Monday, the 10th Circuit Court of Appeals affirmed the cap-and-trade program adopted by New Mexico, Utah, and Wyoming.… More

More Sauce For the Standing Goose: Industry Associations Cannot Challenge EPA’s E15 Rule

I have previously noted that standing is a double-edged sword.  Most commonly, the regulated community uses standing to keep citizen plaintiffs out of court.  However, as the D.C. Circuit Court of Appeals demonstrated yesterday, the regulated community is sometimes hoist on its own collective petard.petard

The decision in Alliance of Automobile Manufacturers v. EPA in the challenge to EPA’s E15 rule wasn’t surprising. … More

UCS Says to Add More Renewables to the Clean Power Plan; If It’s Better, Does that Make It Best?

The Union of Concerned Scientists today announced release of a report which attempts to document that the renewable energy energy-renewable-two-workers-installing-rooftop-solar-panels“building block” in EPA’s Clean Power Plan is not sufficiently aggressive. The report argues that, just relying on existing trends and compliance with renewable energy standards, renewable energy can supply 23% of electricity sales nationally by 2030, well above the 12% assumed by EPA.… More

What a Shock?! Nebraska’s Early Challenge to EPA’s Clean Power Plan Is Dismissed

Opponents of EPA’s Clean Power Plan have not been willing to wait until a final rule has been promulgated before challenging EPA’s authority. On Monday, Nebraska’s challenged was dismissed – not surprisingly – as premature.

Nebraska’s claim was simple – the Clean Power Plan relies in part on technology demonstrated with funding pursuant to the Energy Policy Act of 2005. However, that statute precludes EPA from finding that technologies have been adequately demonstrated for the purposes of § 111 of the Clean Air Act based “solely” on use of the technologies by facilities funded under the Energy Policy Act.… More

EPA Really Does Have Authority To Withdraw Specifications Under Section 404 of the Clean Water Act

Last year, the D.C. Circuit Court of Appeals ruled that EPA has authority to withdraw its approval for the specification of sites for the disposal of fill material, even after the Army Corps has issued a permit for the discharge under section 404 of the Clean Water Act. Now, Judge Amy Berman Jackson of the District Court for the District of Columbia has ruled that EPA properly exercised that authority with respect to the Spruce No.… More

EOEEA Releases Draft Ocean Management Plan Update: Now with Fees

The Massachusetts Executive Office of Energy and Environmental Affairs (EOEEA) recently released for public review and comment a draft update to the Ocean Management Plan for the Commonwealth. The Oceans Act, signed by Governor Patrick in 2008, required the Secretary of EOEEA to develop a comprehensive ocean management plan to be reviewed every five years. The first plan was released in 2009, and the recently released update is a result of this five year review.… More

The SAB Enters the “Waters of the United States” Fray: Guess Which Side the Scientists Support

The Science Advisory Board has now provided its advice to EPA and the ACOE concerning their proposed rule clarifying the definition of “waters of the United States” BM-NeedToKnow-WetlandBanking-GALunder the Clean Water Act. In a brief letter that can only worry the National Farm Bureau and embolden those who thought that the EPA/ACOE proposal did not go far enough, the SAB concluded that:

the available science supports the conclusion that the types of water bodies identified as waters of the United States in the proposed rule exert strong influence on the physical,… More

EPA Proposes to Eliminate Affirmative Defenses for Excess Emissions During Startups, Shutdowns, or Malfunctions — Get Ready for Some Citizen Suits

This past April, the D.C. Circuit struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As we noted at the time, that decision clearly had implications beyond the cement kiln rule.

Those implications were made more concrete this week when EPA issued a supplemental notice of proposed rulemaking in which it proposed to rescind its policy allowing affirmative defenses to penalties for excess emissions during startup,… More

NPDES Permits Are Construed Narrowly Against the Permittee

In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency.  This week, in Alaska Community Action on Toxics v. Aurora Energy Services, the 9th Circuit Court of Appeals treated the stormwater general permit in a similar manner, rejecting the defendants’ arguments that periodic discharges of coal from their coal-loading facility SewardCoalFacilitywere authorized under the stormwater general permit.… More

EPA Refuses to Amend Its Backup Generator Rule: Demand Response Breathes Easier

Last Friday, EPA published notice that it would not be revising its regulations on backup generators in response to three petitions for reconsideration it had received after it promulgated its final rule in January 2013. The rule had sparked controversy, because EPA allowed backup generators to operate for up to 100 hours a year, though EPA did require use of ultra-low sulfur diesel fuel beginning in January 2015.… More

You Can’t Estop the Government — Even When It Wants to Be Estopped

Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.

In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal,… More

Who Gets to Review EPA Actions? The Court of Appeals? The District Court? (Hint: The Answer Is Not “Neither One”)

The general rule under the Clean Air Act is that any:

person may bring suit in district court against the EPA Administrator for an alleged failure to perform a nondiscretionary act or duty, and the district court has jurisdiction “to order the Administrator to perform such act or duty,” as well as to “compel . . . agency action unreasonably delayed.” By contrast, “judicial review of final action by the EPA Administrator rests exclusively in the appellate courts.… More

Is Selenium the Coal Industry’s Kryptonite? Citizen Groups Obtain Summary Judgment Based on Water Quality Criteria Exceedances

Earlier this week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water quality standard for selenium. The permit did not contain effluent limitations for selenium. Nonetheless, the state NPDES permits incorporate by reference regulations stating that:

discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].… More

EPA Wins Two Clean Water Cases in One Day: The Fourth Circuit Affirms a Narrow Construction of the Permit Shield Defense

Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day, the 4th Circuit Court of Appeals affirmed a decision narrowly construing the CWA’s permit shield defense.

Southern Appalachian Mountain Stewards sued A&G Coal over discharges of selenium from A&G’s Kelly Branch Surface Mine in Virginia.… More

The D.C. Circuit Rejects Challenge to EPA’s Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final to Be Appealable

On Friday, the D.C. Circuit reversed Judge Reggie Walton’s decision from 2012 and affirmed EPA’s authority to adopt the “Enhanced Coordination Process” governing coordination with the Army Corps of Engineers in the processing of Clean Water Act permits. The Court also rejected challenges to its 2012 Final Guidance document regarding appropriate conditions on such permits.

The decision on the Enhanced Coordination Process seems rather obvious.… More

Still Using Economic (and Safety) Arguments to Reduce Greenhouse Gas Emissions: Massassachusetts Enacts Gas Leak Legislation

As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to highlight the economic costs resulting from gas leaks. Of course, methane is a much more powerful greenhouse gas than CO2, with a global warming potential of 21.… More

83% of a Loaf Is Better Than None: The Supreme Court Affirms EPA’s Authority to Regulate “Anyway Sources”, But Rejects Regulation of Otherwise Exempt Sources

The Supreme Court today affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have authority to regulate GHG emissions from facilities not otherwise subject to PSD review or the Title V program.

To EPA and the court below, the main issue – EPA’s authority – was not difficult.… More

More on EPA’s GHG Rule: I Am NOT Going To Set Odds on Whether the Rule Would Survive Judicial Review

Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very) slightly broader look at potential legal challenges.

First, I still think that the most obvious potential plaintiffs, owners of coal-fired power plants, might indeed have standing issues in challenging a rule which maximizes the options for attaining reductions in GHG emissions.… More

When Does the Sixth Circuit Set EPA Rules for the Entire Country? When EPA Regulations Require National Uniformity

In a fascinating decision issued today, the D.C. Circuit Court of Appeals struck down EPA’s Summit Directive. The Summit Directive – sounds ominous – was issued in response to the 2012 decision in Summit Petroleum Corp. v. EPA, in which the Sixth Circuit Court of Appeals ruled that EPA could not consider two facilities as “adjacent” for Title V and NSR permitting purposes unless they are,… More

The RGGI Annual Report for 2013: Do We Finally Have a Real Market for Allowances?

Potomac Economics has released the Annual Report on the Market for RGGI CO2 Allowances for 2013. Based on the data in the report, it appears that a functioning market for CO2 allowances is finally developing. What’s the evidence?

• The share of allowances held by investors as opposed to compliance entities increased from 6% to 24% over the course of 2013.

• The volume of allowance futures trading rose from 2 million in 2012 to 76 million in 2013.… More

EPA Promulgates Final Cooling Water Intake Rule: Much Ado About Not Very Much?

On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more significant for what it does not do than for what it does.

What does it do?

• Facilities that withdraw at least 2MGD must reduce impingement based on a finding that use of modified traveling screens with fish returns constitutes the best technology available (BTA).… More

The Wind Bloweth Where It Listeth — And the Supreme Court Says EPA Therefore Has Discretion in Regulating Wind-Borne Pollution

The Supreme Court today reversed the D.C. Circuit and affirmed EPA’s Transport Rule (known more formally as the Cross-State Air Pollution Rule). Whatever the hopes and dreams of the upwind states and the industry opponents, the decision does not surprise me. EPA pretty much did what it was told when the Bush era CAIR rule was struck down. Moreover, EPA crafted a rule that seems to me fully within its discretion under the Clean Air Act and which,… More

Cement Kiln Operators Better Hope that Their Control Technology Works: D.C. Circuit Vacates EPA’s Affirmative Defense Rule

Last week was hazardous air pollutant regulation week at the D.C. Circuit Court of Appeals. First, as we reported, the Court affirmed EPA’s mercury air toxics rule, determining that EPA need not take cost into account in promulgating rules for electric generating units (EGUs) under § 112(n) of the CAA. On Friday, the Court affirmed the substance of EPA’s revised hazardous air pollutant rules for cement kilns,… More

D.C. Circuit Affirms EPA’s Utility Air Toxics Rule: An “Appropriate” Rule Need Not Be Justified By Cost-Benefit Analysis

Yesterday, the D.C. Circuit Court of Appeals affirmed EPA’s rule setting limits for emissions of mercury and other air toxics from fossil-fuel-fired electric steam generating units.  The focus of the decision – and the issue on which Judge Kavanaugh dissented – was whether EPA was required to consider the costs that would be imposed by the rule.  EPA said no and the majority agreed.

Section 112(n) of the Clean Air Act required EPA to perform a study of the health hazards related to hazardous emissions from EGUs prior to regulating them. … More

Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not a Violation of the Permit

Stormwater pollution has become an increasingly important problem.  Part of the difficulty in solving it is that it’s not obvious who should be responsible.  Should cash-strapped municipalities be on the hook or should it be developers and others who own and maintain large properties with acres of impermeable surfaces?  Often, the answer given by EPA and state regulators is that municipal separate stormwater sewer systems, or MS4s are responsible, but they have the authority – and sometimes the obligation – to impose appropriate requirements on property owners.… More

ExxonMobil Admits Climate Change Is Real. It also Imposes an Internal Cost on Carbon. Still Not Enough to Get Any Love From the Greens (Interesting Reading, Though)

Last week, in response to shareholder requests that it disclose information regarding how climate change might affect it in the future, ExxonMobil released two reports, one titled Energy and Climate, and one titled Energy and Carbon – Managing the Risks.  They actually make fascinating reading and seem to represent a new tack by ExxonMobil in its battle with those seeking aggressive action on climate change.… More

Dispatches From the “Sue and Settle” Front: Trade Groups Do Not Have Standing to Challenge Settlements Regarding ESA Listing Procedures

Last week, a federal court, for the fourth time, found that property owners’ groups do not have standing to challenge a settlement between the administration and conservation groups under which the administration agreed to make listing decisions under the Endangered Species Act on more the 250 candidate species by 2016.  Judge Emmet Sullivan, who entered the original settlements, ruled that settlements imposing procedural deadlines on the Fish and Wildlife Service did not cause any redressable injuries to the plaintiffs.… More

Definitely a Victory For Regulations Over Guidance: EPA Issues Proposed Rule Defining Waters of The United States

Tthe Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act.  After several failed attempts at guidance, EPA finally acknowledged that this issue is too important and too contentious for guidance – and that it merits formal notice and comment regulation. … More

Coal Companies, Don’t Look Behind; EPA May Be Gaining on You

As the lawyers among our readers know, the denial of a certiorari petition does not establish precedent.  However, that doesn’t make it unimportant.  Yesterday, the Supreme Court denied cert. in Mingo Logan Coal Co. v. EPA.  The cert. denial leaves in place the decision by the D.C. Circuit Court of Appeals holding that EPA has authority retroactively to withdraw a site specification for a Clean Water Act § 404 permit issued by the Army Corps of Engineers. … More

2 and 1/2 Strikes and the NGOs May Be Out: EPA Refuses to Exercise Residual Designation Authority

Stormwater regulation is a thorny issue.  There is widespread agreement that nutrient run-off can be a significant problem, but little agreement on what to do about it, since stormwater infrastructure is normally managed by cash-strapped municipalities, but the most cost-effective approach will often not be to require thousands of individual properties owners to make large separate capital expenditures (though best management practices can certainly often provide significant benefit).

The NRDC,… More

How Powerful is the Endangered Species Act? Just Ask the Delta Smelt

The Endangered Species Act is a powerful tool for the protection of threatened and endangered species and their habitats.  Just how powerful was made clear last week when the 9th Circuit Court of Appeals largely reversed a trial court opinion and essentially sustained actions taken by the Fish and Wildlife Service to protect the delta smelt.  Delta SmeltThe “reasonable and prudent alternatives” identified in the Biological Opinion issued by the FWS will result in substantially less water being exported from northern California to southern California.… More

The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal Projects Is Limited

The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to mountaintop removal mining is limited to impacts directly related to the filling operations that require a permit, rather than the overall impacts of the mining project.

The case concerned a mountaintop removal project by Leeco in Perry County,… More

Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations Grounds

The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties.  The decision may not break any new ground,… More

Opacity Still Matters: Court of Appeals Affirms EPA’s NSPS for Particulate Matter

Last week, in Utility Air Regulatory Group v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s 2012 New Source Performance Standards for particulate matter emissions from fossil-fuel-fired steam electric generating units.  The opinion is largely a plain vanilla administrative law decision, but does provide some useful guidance on the appeal of CAA regulations.  It is also a useful reminder of the extent of deference to EPA in an ordinary case.… More

NSR Emissions Projections — Finally, An Area Where It is the Regulated Entity Which Is Entitled to Deference

Last spring, the 6th Circuit Court of Appeals ruled that when power plant owners compare actual emissions to projected future actual emissions for the purpose of determining whether a project is subject to the Clean Air Act’s NSR provisions, EPA may bring an enforcement action if the operator does not “make projections according to the requirements for such projections contained in the regulations.”  At the same time, however,… More

I Thought Redeveloping Brownfields Was a Good Idea: Apparently the Boston Globe Hasn’t Gotten the Message

In an article earlier this week, the Boston Globe reported on concerns that the Massachusetts Department of Environmental Protection is planning to weaken cleanup standards for hazardous waste sites in Massachusetts, seemingly in response to pressure from developers.  The article is so wrong and the concerns are so misplaced that some response is necessary.

First, we expect MassDEP to regulate in the face of uncertainty. … More

More Than Five Years Later, the Bush Administration Is Still Losing Environmental Cases

I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line.  Indeed, even four years after Bush left office, it was continuing to lose decisions.  Now, we can say that the record has extended to five years.  Last week, in National Parks Conservation Association v. Jewell, the United States District Court for the District of Columbia vacated the 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement,… More

EPA May Rely — In Part — on Projects Funded Under the Energy Policy Act to Justify the Greenhouse Gas NSPS. That’s Its Story and It’s Sticking To It

As those following EPA’s efforts to promulgate NSPS for greenhouse gas emissions from new fossil fuel-fired electric generating plants know, EPA has come under fire for basing its proposal on demonstrations of feasibility at projects that have received federal funding or tax credits under the Energy Policy Act of 2005.  Apparently, EPA is sufficiently concerned that they have prepared a Notice of Data Availability to be published in the Federal Register. … More

Cooperative Federalism Is Even Messier Than We Thought: 21 States Oppose the Chesapeake Bay TMDL

Last fall, the District Court for the Middle District of Pennsylvania affirmed EPA’s TMDL for the Chesapeake Bay.  As I noted at the time, Judge Rambo pointed to the sometimes “messy and cumbersome” nature of cooperative federalism in affirming the TMDL, stating that:

It is unavoidable that states and the federal government will occasionally disagree. EPA worked with the states to ensure that the proposed allocations were sufficient to achieve water quality standards. … More

Cape Wind Survives a Legal Challenge to FAA Approval: Is the Opposition Strategy to Play Whac-A-Mole?

On Wednesday, the Court of Appeals rejected a challenge by the Town of Barnstable to the FAA’s “no hazard” determination for Cape Wind.  As background, the same court had determined in 2010 that a prior no hazard determination by the FAA had not been adequately supported.  This time, the FAA did better, in part because the facts on the ground were better.  One significant concern in 2010 had been the potential impact of the turbines on the radar system at Otis Airfield. … More

One More Update on the GHG NSPS Rule: EPA Has Improved Its Odds of Surviving Judicial Review, But I’m Still, Still, Skeptical

When EPA’s NSPS Rule for GHGs was published in the Federal Register last week, I noted that the rule might be on shaky ground, because an EPA Science Advisory Board work group had questioned the basis for EPA’s decision that carbon capture and storage is feasible technology.  Now it turns out that EPA has provided the work group with some additional information and the work group issued a memorandum last week stating that further review by the SAB is not required. … More

EPA’s Proposed NSPS Rule for GHGs Is Finally Published in the Federal Register; I’m Still Skeptical

EPA’s Proposed New Source Performance Standards for greenhouse gas emissions from new sources was finally published in the Federal Register on Wednesday.  At least fundamentally, it seems unchanged from the proposal released last September.  It is still based on the conclusion that carbon capture and storage is feasible and represents BSER – the best system of emission reduction – for fossil fuel-fired electric steam generating units.… More

Is Renewable Energy At Parity With Fossil Fuels? Not Quite, But Certainly Closer

According to ClimateWire on Tuesday, a Minnesota state administrative law Judge’s recommendation to the state Public Utility Commission may be the first time that a solar project has been declared cost-competitive against natural gas in an open bidding situation.  That might be a little bit hyperbolic, given that Xcel Energy, which would be purchasing the power, has an obligation to significantly increase its solar portfolio and the decision recognized the economic value of the solar renewable energy credits that the recommended winner,… More

Citizens Are Not Harmed By the Concept of Pollution Trading: A Challenge to the Chesapeake Bay TMDL Is Dismissed

On December 13, the District Court for the District of Columbia dismissed plaintiffs’ challenge in Food and Water Watch v. EPA to the Chesapeake Bay TMDL’s discussion of pollution trading and offsets.  As I had previously noted, the TMDL itself already survived judicial challenge.

In this case, plaintiffs alleged that they would be harmed by trading of effluent discharge rights,… More

RGGI: the Hot New Investment Tip?

In last week’s auction held by the Regional Greenhouse Gas Initiative (RGGI), not only did the allowances sell at $3 — the highest clearing price in four years, other than the June auction’s $3.21 — but a majority of the allowances sold to investors, rather than the large generators of electricity whose carbon dioxide emissions are regulated under RGGI.  Fifty-seven percent of the allowances were bought by commodities firms,… More

What Do Midwestern States Have In Common With Groucho Marx? Ask Them Whether They Want to Be Part of the Ozone Transport Region

As the Supreme Court gets ready to consider the validity of EPA’s Cross-State Air Pollution Rule, some of the Northeastern and Mid-Atlantic states are taking another tack to address at least part of the air pollution transport issue.  They have petitioned EPA under § 176A of the Clean Air Act to add Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia to the Ozone Transport Region established under § 184 of the CAA.… More

Just a Hiccup or a Major Obstacle? EPA Science Advisory Board Work Group Recommends that the SAB Review the Science Behind EPA’s Proposed NSPS For Greenhouse Gases

I have posted numerous times in recent years on the importance of the views of EPA’s own science advisors in judicial determinations whether EPA regulatory actions are arbitrary and capricious.  With few exceptions, courts have affirmed EPA when the regulations were supported by EPA’s science advisors, and struck down the regulations when not supported by those advisors.

Now comes word that a work group of EPA’s Science Advisory Board has recommended that the SAB review the science supporting EPA’s proposed New Source Performance Standards for GHG emissions from electric generating units. … More

Man Bites Dog: DOE Issues Electric Motor Efficiency Standards; Everyone Applauds

On November 25, the world was stunned as DOE proposed new energy efficiency standards for electric motors, and no one complained.  The standards will apply to motors from 1 to 500 horsepower and will cost roughly $500 million annually over the expected 30-year life of the rule.  However, they are also expected to save approximately one trillion kilowatt-hours of electricity over that period.  That’s $23 billion in energy costs and 400 million tons of CO2.… More

Waters of the United States: Definitely a Regulation, Not Guidance

Last week, what appears to be a draft (so long that it is in two separate parts) of EPA’s proposed rule defining “waters of the United States” was widely circulated.  Part of what I love about this story is that it is uncertain whether this is in fact the draft rule that EPA sent to OMB to review.  On one hand, it has many of the hallmarks of an EPA proposed rule. … More

Hoist on Its Own Petard: The Ninth Circuit Reverses EPA’s Approval of Nanosilver Pesticides in Textiles

Last week, the 9th Circuit Court of Appeals remanded EPA’s approval of two nanosilver pesticides for use in textiles.  The case, NRDC v. EPA, is a fascinating application of the issue of “how safe is safe” and, in particular, how much conservatism must be applied to risk estimates when there is significant uncertainty in the analysis.

EPA sets the acceptable exposure to pesticides under FIFRA by determining the risk and then addressing uncertainties. … More

EPA’s Groundwater Remedy Completion Strategy: Making Cleanups More Efficient Or Just Increasing PRP Costs?

Last week, EPA released a draft Groundwater Remedy Completion Strategy.  The strategy is intended to provide:

a recommended step-wise plan and decision making process for evaluating remedy operation, progress and attainment of [remedial action objectives] using an updated conceptual site model, performance metrics and data derived from site-specific remedy evaluations.

I like to think that I am skeptical, not cynical.  Having worked on this stuff for 25 years,… More

And You Thought Ending Flood Insurance Subsidies Would Be Difficult? Try Persuading a Politician to Support “Managed Coastal Retreat”

Earlier today, I posted about the political difficulties inherent in reforming flood insurance programs to avoid subsidizing those who choose to live in coastal areas subject to flooding.  When even Democratic legislators supportive of efforts to fight climate change oppose such reforms, you know you are in trouble.

Well, when it rains, it pours, as it were.  Just hours later comes news of the release of a report from the Columbia Law School Center for Climate Change Law on “Managed Coastal Retreat.”  The title pretty much tells it all. … More

The Answer, My Friend, Is Not Blowin’ In The Wind: Waste From CAFO Ventilation Fans Does Not Require an NPDES Permit

Earlier this year, in her aptly named post “What the Cluck?”, Patricia Finn Braddock, noted that a state court in North Carolina had held that wastes from poultry farms, blown by ventilators from confinement houses and then washed into waters of the United States with stormwater flow, are subject to NPDES permit requirements.  Well, in a decision issued on October 23, Judge John Preston Bailey,… More

EPA Issues Revised Draft NSPS for Carbon Emissions From New Power Plants: It’s All About Technology Forcing

Last Friday, EPA reissued its draft NSPS addressing carbon emissions from new power plants.  It’s not actually that different from the prior proposal, which would have required all new fossil-fuel plants to meet a 1,000 lbs CO2/MWh standard.  The new proposal would require new large gas plants to meet the 1,000 lbs/MWh standard, but would relax the standard to 1,100 lbs/MWh for small gas plants and for coal plants. … More

Cooperative Federalism is “Messy and Cumbersome” — EPA’s Chesapeake Bay TMDL is Upheld

Last Friday, in American Farm Bureau Federation v. EPA, Judge Sylvia Rambo upheld EPA’s Chesapeake Bay chesapeake-bayTMDL.  As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are massive and the issues complicated, her review was not that difficult.

Notwithstanding the expansive administrative record, and the complexity of the numerous issues implicated herein, the court’s scope of review in this case is relatively narrow.… More

Yes, Indeed, A Victory For Regulation Over Guidance

EPA’s used its blog today to announce that it and the Army Corps of Engineers have sent to OMB a draft rule clarifying the scope of jurisdiction under the Clean Water Act.  It appears that EPA has finally given up on its controversial efforts to solve the Rapanos problem through guidance.  As I noted previously, when an agency is still working on its quick and easy guidance (with regulations to follow) eight years after the court decision that made the guidance necessary,… More

Standing Matters, TMDL Version

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod.  Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.

CLF asserted two claims.  First, it alleged that EPA wrongly classified certain sources,… More

More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold

As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification.  These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.… More

The Final Nail In the Coffin on EPA’s Enforcement Initiative Against Historic PSD Violations? The Third Circuit Agrees That PSD Violations Are Not Ongoing

Only last month, the 7th Circuit ruled that alleged violations of the Clean Air Act’s PSD requirements are not ongoing.  On Wednesday, in United States v. EME Homer Generation, the 3rd Circuit agreed.  Like the 7th Circuit, the 3rd Circuit did not really even view the question as difficult, finding the statute unambiguous and never reaching the second step of traditional Chevron analysis.… More

Integrated Assessment Models of the Social Cost of Carbon: False Precision Is More False Than Precise

For those who both believe in the reality of climate change and dream of a day when Congress might get past gridlock and address the issue, the critical question is how to price carbon emissions to reflect the external costs that the use of carbon imposes on society:  the “social cost of carbon”, or SCC.  Recently, attention has focused on efforts to develop “Integrated Assessment Models.”  The point of the IAMs is to integrate the scientific analysis of the changing climate with the economic costs that would result from varying degrees of climate change.… More

The Atomic Energy Act Preempts Vermont’s Efforts To Close Vermont Yankee: Sometimes, Legislative Intent Is Just Too Clear To Ignore

Last week, in Entergy v. Shumlin, the 2nd Circuit Court of Appeals largely struck down Vermont’s efforts to close Vermont Yankee.  Although three separate Vermont statutes were at issue, and Entergy made both preemption and dormant Commerce Clause arguments, the essence of the case was simply that Vermont sought to require explicit legislative approval for Vermont Yankee’s continued operation.  Dismissing various proffered rationales for Vermont’s scheme,… More

More on the Permit Shield Defense: A Permittee Is — Gasp — Entitled to Rely on Regulations and Permits Issued by Delegated State Agencies

Late last month, we noted that a permittee may not rely on the permit shield defense unless it has clearly informed the permitting agency of the nature of its discharge.  Now we see the flip side.  In Wisconsin Resources Protection Council v. Flambeau Mining Company, the 7th Circuit Court of Appeals held that Flambeau Mining was entitled to rely on the permit shield defense with respect to its stormwater discharges,… More

What Is the Burden In Proving a Violation of a Stormwater Permit? If It Walks Like a Stormwater Discharge …

Those of us who do NPDES work know that enforcement, including citizen enforcement, against industrial point sources can often be all to straightforward.  The plaintiff marches into court with a pile of the defendant’s discharge monitoring reports and the liability phase may be over quickly.  Stormwater cases are different, as last week’s 9th Circuit decision in NRDC v. County of Los Angeles demonstrates.

The case had a number of twists and turns,… More

Making Economic Arguments to Reduce GHG Releases: Senator Markey Releases a Report on Methane Leaks From Gas Distribution Lines

Two years ago, when I participated in a D.C. fly-in with a renewable energy group, we were instructed not to use the words “climate change.”  Instead, we were told to focus on “growing the clean energy economy.”  The push to frame the climate debate in economic terms continues.  This week, Senator Markey released a report asserting that, in Massachusetts alone in 2011, 69 billion cubic feet of natural gas was released from gas distribution lines. … More

We Still Don’t Need No Stinkin Cooperative Federalism: The D.C. Circuit Court of Appeals Holds that GHG Sources Require PSD Permits Even Absent a State Implementation Plan

Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act.  On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my point, by affirming EPA’s assertion of PSD permitting jurisdiction in Texas and Wyoming in the face of those states’ failure to prepare state implementation plans to incorporate permitting programs to implement EPA’s greenhouse gas rules under the PSD program.… More

Cooperative Federalism? We Don’t Need No Stinkin Cooperative Federalism

Last Friday, the Court of Appeals for the 10th Circuit, in Oklahoma v. EPA, affirmed EPA’s rejection of Oklahoma’s state implementation plan setting forth its determination of the Best Available Retrofit Technology, or BART, to address regional haze.  The Court also affirmed EPA’s promulgation of a federal implementation plan in place of the Oklahoma SIP.  While rehearsing the Clean Air Act’s “cooperative federalism” approach, the Court seemed more focused on deference to EPA’s technical assessment of the SIP than on any obligation by EPA to cooperate with states.… More

Mississippi v. EPA: Support of the Clean Air Science Advisory Committee is Not Necessary to Affirm EPA’s NAAQS

On Tuesday, in Mississippi v. EPA, the Court of Appeals for the D.C. Circuit affirmed EPA’s 2008 NAAQS for ozone of 0.075 ppm.  However, it remanded EPA’s decision to set the secondary NAAQS, for public welfare, at the same 0.075 ppm level.  With respect to the primary standard, the Court gave short shrift to industry and red-state challenges that the standard was too stringent.  This is not surprising,… More

Section 126 of the Clean Air Act and Cooperative Federalism: EPA May Cooperate with the Downwind State Rather than the Upwind State

On Friday, in GenOn REMA v. EPA, the 3rd Circuit Court of Appeals ruled that, in response to a petition from a downwind state under § 126 of the Clean Air Act, EPA may issue a rule imposing emission limits on a source in the upwind state without waiting for the upwind state to complete its own SIP process, which would presumably result in appropriate controls to protect the downwind state. … More

One Step At A Time Is Just Too Late: The DC Circuit Strikes Down EPA’s Deferral of GHG Regulation of Biomass Emissions

On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources.  EPA had promulgated the rule, delaying regulation of emissions from biogenic sources from July 20, 2011, to July 21, 2014, on the ground that the carbon cycle is sufficiently complex that EPA is not yet in a position to judge what the actual carbon impact of different biogenic sources might be. … More

The Seventh Circuit Cuts the Gordian Knot of NSR Interpretation: Preconstruction Review Cannot Lead to Continuing Violations

Earlier this week, in United States v. Midwest Generation, the 7th Circuit Court of Appeals affirmed dismissal of EPA’s NSR enforcement action against Commonwealth Edison.  Commonwealth Edison was the prior owner of the plants at issue and modified them at various times from 1994-1999 without obtaining PSD/NSR approvals before doing so.  Midwest Generation purchased the plants and continued to operate them.  In 2009, the United States sued both Commonwealth Edison and Midwest Generation. … More

MassDEP Proposes Amendments to CO2 Budget Trading Regs to Implement RGGI Program Changes

On Friday, MassDEP released for public review and comment draft amendments to the CO2 Budget Trading Program regulations.   These amendments are designed to implement the changes to the Regional Greenhouse Gas Initiative (RGGI) agreed to by the RGGI states earlier this year as part of the 2012 Program Review.

As Seth previously discussed, the major change is a new cap that reduces the baseline budget of allowances for 2014 by 45%,… More

The Problem with the Supreme Court’s Regulatory Takings Jurisprudence? It Doesn’t Require a Taking

The Supreme Court ruled today, in Koontz v. St. Johns River Water Management District, that a property owner who is denied a land use permit on the ground that he refused to pay money to compensate for the harm to be caused by his proposed property use states a claim for a regulatory taking, unless the regulator can establish a “nexus” and “rough proportionality” between the exaction and the alleged harm requiring mitigation.… More

The Supreme Court Agrees to Review the CSAPR Decision: Might EPA Avoid Version 3 of the Transport Rule?

The Supreme Court today granted certiorari in EPA v. EME Homer City, the challenge to EPA’s Cross-State Air Pollution Rule, or CSAPR.  The Court of Appeals for the District of Columbia had struck down the rule, over a fairly blistering dissent from Judge Judith Rogers.

Speculation over the reasons why the Supreme Court takes a case is often pointless, but I will say this:  Consideration of the history of EPA’s rulemaking leads to the conclusion that the rule should be upheld.… More

I Believe in Environmental Regulation, But….

As readers of this blog know, I believe in governmental environmental regulation.  We have a complicated world and it is not surprising that many activities, including those generating greenhouse gases, cause negative externalities.  At the same time, however, I have spent more than 25 years representing regulated entities in negotiations with government regulators and it is impossible to do such work without obtaining an appreciation for the very significant costs that bureaucracies impose.… More

Which Comes First, Innovation or Regulation?

Two seemingly unrelated stories in Wednesday’s trade press got me thinking – always dangerous – about the relationship between regulation and innovation.  The first story, from Daily Environment Report, noted that House Republicans have introduced a bill which would preclude EPA from promulgating CO2 performance standards for either new or existing fossil fuel power plants until carbon capture and storage systems have been determined to be technologically and economically viable. … More

City of Arlington v. FCC: Did the Supreme Court Just Expand the Scope of Chevron Deference? No.

On Monday, in City of Arlington v. FCC, the Supreme Court made clear that agency interpretations of ambiguous statutes are entitled to deference even where they involve questions relating to the scope of an agency’s authority or jurisdiction.  Greenwire seems to think that this is a big deal and even speculated today that City of Arlington may have altered the decision in a case challenging EPA’s determination that it does not have authority under TSCA to regulate lead ammunition.… More

A Nice, Straightforward Administrative Law Decision: HHS’s Decision to List Styrene as Reasonably Anticipated to Cause Cancer is Affirmed

Last week, in Styrene Information and Research Center v. Sebelius, Judge Reggie Walton of the District Court for the District of Columbia rejected challenges to the decision by HHS Secretary Kathleen Sebelius to list styrene as “reasonably anticipated” to be a carcinogen.  The case does not really break any new ground, but is a solidly written summary of several recurring issues in administrative law relating to review of agency decisions.… More

Boston Joins the Building Disclosure Bandwagon: Ordinance Will Require Reporting in 2014

On May 8, the Boston City Council approved an ordinance requiring building owners to report annual energy and water use.  The final ordinance is slightly different from the one about which we posted in February.  Highlights include the following:

  • Building owners subject to the ordinance will have to report on May 15 of each year:

The previous calendar year’s energy and water use of each building and other building characteristics necessary to evaluate absolute and relative energy use intensity.… More

Massachusetts Releases Its Revised Solid Waste Master Plan: Are We Really on a Pathway to Zero Waste?

On Tuesday, MassDEP announced release of its updated Solid Waste Master Plan, subtitled “Pathway to Zero Waste.”  The Plan’s most significant discussion relates to the state of the solid waste market and the Plan’s goal for disposal reduction.  The Plan announces a goal of reducing solid waste disposal by 30% from 2008 to 2020, from 6,550,000 tons to 4,550,000 tons.  However, the Plan acknowledges that,… More

Surprise, Surprise, Surprise: An Agency Cannot Revise Regulations In a Consent Decree

In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP without complying with the procedural requirements of the Federal Land Policy Management Act.  The rationale of the decision should apply far more broadly than just the FLPMA,… More

When is the Meaning of a Statute Sufficiently Plain? The D.C. Circuit Restores EPA Authority to Withdraw Approval of Section 404 Permits

In a decision on Tuesday that must have sent shivers down the spine of every coal company executive, the D.C. Circuit Court of Appeals restored EPA’s authority to withdraw the specification of streams for the disposal of mountaintop mining wastes spruce mine– years after the Army Corps had issued the permit containing the specification.  Indeed, Daily Environment Report quoted National Mining Association CEO Hal Quinn as saying that the decision,… More

Coming to a Steam Electric Generating Plant Near You in May 2014 — New Effluent Limitation Guidelines

Last Friday, EPA announced release of its draft proposal to revise the effluent guidelines and standards for the steam electric power generating industry, last revised in 1982.  The proposal was in conformance with a litigation settlement with environmental groups, which also calls for a final rule by May 22, 2014.

The proposed rule actually sets out four different regulatory options, and they are sufficiently complicated that EPA’s Fact Sheet on the proposal does not even attempt to summarize them. … More

CZM Proposes Regulations to Implement Ocean Management Plan and Update Federal Consistency Review Program

The Massachusetts Office of Coastal Zone Management (CZM) recently released for public review and comment draft regulations designed to update federal consistency review requirements and implement the state’s Ocean Management Plan.

Governor Patrick signed the Oceans Act on May 28, 2008, requiring the Secretary of EOEEA to develop a comprehensive ocean management plan.  The Massachusetts Ocean Management Plan was released on December 31, 2009. … More

Equal Protection Claims Concerning Disparate Enforcement of Environmental Laws Remain an Uphill Battle

In 2000, in its 2-page per curiam opinion in Village of Willowbrook v. Olech, the Supreme Court gave hope to developers and property owners that the equal protection clause could be used to prevent local zoning and environmental officials from engaging in disparate treatment against disfavored residents.  The Court stated that one may bring an equal protection claim as a “class of one” where

the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.… More

Stop the Presses: Utility Poles in Place Are Not Point Sources; Neither Are They Solid Waste

As we noted last month, the Supreme Court has determined that logging roads are not point sources subject to stormwater regulation under the Clean Water Act.  On Wednesday, in Ecological Rights Foundation v. Pacific Gas and Electric, the 9th Circuit Court of Appeals, relying in part on the decision in Decker v. Northwest Environmental Defense Center, held that releases of pentachlorophenol and other pesticides from in-place utility poles also do not constitute point source discharges. … More

EPA Proposes Revisions to the Construction and Development Effluent Guidelines: Time Again To Ask Whether EPA Will Get Any Credit For Being Flexible

Today, EPA formally proposed revisions to its effluent guidelines for stormwater discharges from construction and development point sources.  As we have previously noted, in response to concerns about the basis for EPA’s numeric turbidity standards, EPA had stayed the numeric standards.  It is now formally proposing to withdraw them.

EPA also responded to concerns that the rule contains certain exceptions where particular practices are infeasible,… More

EPA Finalizes Revisions to the Utility MACT Rule For New Plants

On Thursday, EPA finalized revisions to the Mercury and Air Toxics Standards, or MATS (also known as “Utility MACT”).  The most significant change was to revise the mercury emissions standard from 0.0002 pounds per gigawatt-hour to 0.003 pounds per gigawatt-hour.  The change was made in response to comments suggesting that the more stringent standard simply wasn’t attainable.  EPA notes that attainment of the 0.003 lb/GWh will still require installation of the same types of pollution control equipment.… More

EPA Loses Another Battle in the War Over Guidance: The Eighth Circuit Vacates EPA Policies on Mixing Zones and Bypasses

On Monday, EPA lost another battle in the war over guidance.  In Iowa League of Cities v. EPA, the 8th Circuit Court of Appeals vacated two letters that EPA had sent to Senator Charles Grassley concerning biological mixing zones and bypass of secondary treatment units at POTWs (also referred to as “blending”, because the POTWs blend wastewater that has not be subject to biological secondary treatment with wastewater that has,… More

Logging Road Runoff Does Not Require an NPDES Permit: The Supreme Court (For Now) Defers to EPA’s Interpretation of Its Own Regulations

Yesterday, in Decker v. Northwest Environmental Defense Center, the Supreme Court ruled that runoff from logging roads does not constitute a discharge from a point source that requires an NPDES permit.  The decision upholds EPA’s interpretation of its own regulations and overturns – what a surprise! – a 9th Circuit decision which had held that permits were necessary for logging runoff.

While EPA got the result that it wanted here,… More

Not a Shining Moment For Congress: Two Leading Economists Note the “Sordid History” of Cap-and-Trade Legislation

I have previously blogged about how strange our politics has become, when cap-and-trade programs, previously touted by conservatives and viewed skeptically by environmentalists as a “license to pollute,” somehow become for conservatives the poster child of big government programs.  It is nice when economists as respected as Dick Schmalensee and my friend Rob Stavins make the same point.  I’m not sure I can put it much more succinctly than this:

It is truly ironic that conservatives chose to demonise their own market-based creation.… More

MassDEP Regulatory Reform Release 2.0: Wetlands, Water, and Waterways

In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs.  As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait.  MassDEP has provided two separate helpful summaries of the changes, one concerning wastewater issues and the other concerning wetlands,… More

MassDEP Formally Proposes MCP Reforms: It’s About Time? Job Well Done? Definitely Both.

On Friday, MassDEP issued the formal public comment draft of its package of regulatory reforms under the Massachusetts Contingency Plan.  Overall, it’s certainly a good package, which will facilitate getting to an endpoint with reduced transaction costs, but no decrease in environmental protection.  It’s not perfect (and you have until May 17, 2013 to provide comments to help make it more perfect), and it took far too long,… More

A Victory For Regulation Over Guidance? Are EPA and the Corps Giving Up on Post-Rapanos Wetlands Guidance?

As readers of this blog know, EPA’s use of guidance is a pet peeve of mine.  The issue has arisen with particular force in connection with EPA’s efforts to define Clean Water Act jurisdiction following the Supreme Court decision in Rapanos.  When I last posted on this issue, I noted that any potential theoretical benefits to guidance were being outweighed by the practical reality that issuing guidance on such an important issue ends up taking on many of the trappings of regulation,… More

California GHG Auction: Some Anecdotal Evidence of the Cost of Regulatory Uncertainty?

The California Air Resources Board just released the results of its second auction of GHG allowances.  While the auction for vintage 2013 allowances was still healthy, with all allowances sold at $13.62/allowance, the future auction, for vintage 2016 allowances, did not fare so well.  Fewer than half the allowances sold, and the clearing price was CARB’s reserve price of $10.71/allowance.

Why the disparity?  It’s significantly above any reasonable discount rate. … More

Building Energy Reporting Comes To Boston (Almost)

Today, Mayor Menino forwarded to the Boston City Council proposed amendments to the City of Boston Code that would require owners of many city buildings to report their energy and water use annually.  That information would then be made available to the public – presumably so that the market can work its magic and informed consumers can put pressure on building owners to increase the efficiency of their buildings.… More

When Do Air Emissions Constitute a Discharge to Waters of the United States? Any Time the Emissions Reach Waters of the United States?

In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have significant implications for any source of air emissions that can credibly be alleged to affect waters of the United States.  The case is Rose Acre Farms v.… More

MassDEP Tightens TCE Indoor Air Regulation: The $64,000 Question? What About Closed Sites?

Last week, MassDEP released new guidance on how it is assessing exposures to TCE in light of EPA new assessment of TCE risks released in September 2011.  The biggest issue is that concerns about fetal exposure have caused MassDEP to tighten the imminent hazard threshold for indoor air exposures to 2 ug/m3.  That’s an order of magnitude reduction from the prior standard of 20 ug/m3.

MassDEP has apparently thus far taken the position that it is not planning on reopening closed sites based on the new IH criterion. … More

What Makes One Invalid Rule More Valid Than Another? The Court of Appeals Declines to Rehear CSAPR, and Leaves CAIR In Place

Today, the Court of Appeals for the District of Columbia declined EPA’s petition for rehearing en banc in EME Homer City Generation v. EPA, leaving the original panel decision striking down EPA’s Cross-State Air Pollution Rule in place.  Environmental groups had hoped for a rehearing based on Judge Rodger’s emphatic dissent, but a request for en banc review is always an uphill battle.… More

EPA Loses Another PSD Case: The Clean Air Act is “Extraordinarily Rigid”

In Sierra Club v. EPA, issued today, The Court of Appeals for the District of Columbia rejected EPA’s rules governing “significant impact levels” and “significant monitoring concentrations” for determining PSD permitting requirements for new sources of PM2.5.  Both the SIL and SMC provisions provided important exemptions from the PSD permitting regime. The Court ruled that neither provision was justified given the inflexible language of the Clean Air Act.… More

EPA Splits the Baby on Backup Generators: Still Allows 100 Hours Use, But Now Requires Ultra Low Sulfur Diesel

Yesterday, EPA finalized revisions to the National Emissions Standards for Hazardous Air Pollutants for stationary reciprocating internal combustion engines, or – one of my new favorite acronyms – RICE.  The biggest dispute over the rule was the extent to which it would allow backup diesel generators to run for demand response purposes.

As we had noted previously, EPA proposed last May to allow backup generators to run for up to 100 hours for demand response purposes without being subject to emissions limits. … More

EPA Formally Withdraws Numeric Turbidity Standards from Its Stormwater Rule for Construction and Development Sites

Daily Environment Report announced yesterday that EPA notified BNA that, late last year, EPA reached a settlement with the Utility Water Act Group and the National Association of Home Builders resolving litigation over EPA’s rule imposing effluent limitations on the “Construction and Development Point Source Category” and over its Construction General Permit.

The most contentious aspect of EPA’s regulatory efforts in this area was EPA’s inclusion of numeric turbidity limits. … More

Dog Bites Man: Supreme Court Edition

In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a part of the river which still maintains natural banks is not a “discharge of a pollutant” within the meaning of the Clean Water Act.  The decision appears to be controlled by the Court’s prior decision in Florida Water Management District v.… More

More Than Four Years Later, the Bush EPA Is Still Losing Court Decisions

On Friday, the Court  of Appeals for the District of Columbia Circuit rejected EPA’s approach to implementation of the PM2.5 NAAQS.  The fine particulate NAAQS was first published in 1997, and EPA issued implementation rules in 2007 and 2008.  Those rules specified that EPA Subpart 1 of Part D of title I of the CAA – the general implementation provisions – rather than Subpart 4, which applies specifically to PM10. … More

Can Wind Energy Serve As Baseload Power? The First Circuit Agrees with the NRC That, For Now, The Answer Is “Not Yet.”

In an interesting decision issued last Friday, the Court of Appeals for the First Circuit, in Beyond Nuclear v. NextEra Energy Seabrook, affirmed the decision by the NRC rejecting a challenge to Seabrook’s relicensing posed by a coalition of environmental groups.  The decision seems clearly correct, but raises an important policy issue that is likely to recur as renewable energy technologies advance,… More

I Guess You Can’t Say That EPA Gives Lumps of Coal For Christmas Presents: It Does, However, Finalize Adjustments to the Boiler MACT Rule

Last Friday, just in time for the Christmas holiday, EPA finalized revisions to the Boiler MACT rule.  As it has done with other significant rules, EPA basically fine-tuned the existing rule, responding to some specific comments, adding a smidgen of flexibility here, and a dash of extra time to comply over there.  I think that EPA deserves credit for responding to the regulated community, while still imposing rules that provide significant benefits.… More

MassDEP Begins to Roll Out Its Regulatory Reforms: Good News on the Solid Waste Front

As I’ve previously discussed, MassDEP has been embarked on an effort – prompted by shrinking budgetary resources – to promulgate a package of regulatory reforms.  While the package was announced in March 2012 and updated last October, we only saw the first set of actual proposed regulations last week, when MassDEP announced changes to both its asbestos regulations and its solid waste regulations. … More

MassDEP Issues a New Solid Waste Master Plan: A Difficult Road to Achieve Some Ambitious Goals

Late last week, MassDEP announced release of the 2010-2020 Solid Waste Master Plan, subtitled “Pathway to Zero Waste.”  James Collins might describe that as a Big Hairy Audacious GoalI have nothing against Big Hairy Audacious Goals, but sometimes they are implemented through Big Hairy Audacious Regulations.  Time will tell if that’s the case here.

The Master Plan goals are to reduce solid waste by 30% by 2020 and 80% by 2050 – not quite zero waste,… More

Yawn: EPA Promulgates New Fine Particulate Standard

On Friday, EPA announced promulgation of its revised fine particulate, or PM2.5, NAAQS.  Why am I yawning?  Let me count the ways:

1.         Because, in 2009, the District of Columbia Court of Appeals rejected EPA’s prior effort to keep the PM2.5 standard at 15 ug/m3.

2.         Because, as I have previously noted, the Court of Appeals pretty much told EPA that it could not ignore the advice of its Clean Air Science Advisory Committee in setting the NAAQS.… More

Another Dispatch From the Guidance Front: Is EPA’s Vapor Intrusion Guidance Ready For Prime Time?

A story in Tuesday’s BNA Daily Environment Report notes that several representatives of industry interests are asking EPA to hold off on issuing its much-anticipated vapor intrusion guidance until it can be subject to public comment.  Apparently, the current draft was sent to regional offices – but not distributed to the public – for review.  Someone at Inside EPA leaked it to Fox Rothschild and asked for comment.  … More

EPA Notches Another NSR Settlement: Is This The Most Successful Program That Shouldn’t Exist?

Last week, EPA announced that it had reached yet one more – its 24th – settlement under as a result of its NSR enforcement initiative.  This time, it was Louisiana Generating’s Big Cajun II plant, in New Roads, Louisiana.  By now, the contours are familiar, including a penalty of $14 million and injunctive relief estimated to cost approximately $250 million.  Changes will include:

  • Installation of SNCR (not SCR) on all units to control NOx.…
  • More

MassDEP Issues Final Rules for Anaerobic Digestion Facilities: Let’s Hope They Work

This week, MassDEP announced that it had finalized regulatory revisions intended to encourage anaerobic digestion projects in the Commonwealth. The regulations are the culmination of a long stakeholder process . Since our firm knows from personal experience MassDEP’s ability to tie itself in knots on this issue, there is little doubt that this package was necessary as a practical matter.

Highlights of the regulations include:

  • An exemption from the site assignment process for anaerobic (and aerobic) digestion operations
  • A general permit for digestion operations receiving no more than 100 tons per day (30 day rolling average) – That’s up from a 60 tpd limit in the original proposal
  • Site-specific permits for facilities receiving more than 100 tpd
  • Revisions to wastewater regulations allowing digesters at publicly owned treatment works to receive organic waste from off-site.…
  • More

Little Ado About Very Much: EPA Reinterprets Its PCB Guidance

pcb_guidanceOn Tuesday, EPA issued its “reinterpretation” of its understanding of what building wastes constitute “PCB bulk product waste” under TSCA regulations, as opposed to “PCB remediation waste.” Previously, when PCBs migrated from building products, such as caulk, the caulk would be considered PCB bulk product waste, while the underlying contaminated building material would be considered PCB remediation waste. Now the building material will also be considered PCB bulk product waste. … More

Clean Air Grab Bag

There have been so many developments recently on the air front (and I’m so far behind due to an appellate brief) that I thought I would combine a few recent items.

First, oral arguments were heard Monday on the challenges to the Bush EPA ozone NAAQS of 0.075 ppb. As I have previously noted, the Court of Appeals for the District of Columbia Circuit has made pretty plain that EPA cannot ignore the recommendations of the Clean Air Science Advisory Committee in setting the NAAQS. … More

Climate Change and Cost Benefit Analysis: Cass Sunstein Is Talking, But Is Anyone Listening?

Sunday’s New York Times had an op-ed piece by Cass Sunstein, recently departed head of the Office of Information and Regulatory Affairs, advocating for sensible measures to address global climate change. Sunstein’s argument is that

Economists of diverse viewpoints concur that if the international community entered into a sensible agreement to reduce greenhouse gas emissions, the economic benefits would greatly outweigh the costs.

I don’t disagree with anything he says;… More

Who Knew? The National Research Council Discovers That Many Groundwater Cleanups Will Take More Than 100 Years

Daily Environment Report today noted that the National Research Council has produced a study, Alternatives for Managing the Nation’s Complex Contaminated Groundwater Sites, which assesses the scope of the groundwater contamination problem and our ability to address it. One significant takeaway from the report is that

Significant limitations with currently available remedial technologies persist that make achievement of MCLs throughout the aquifer unlikely at most complex groundwater sites in a time frame of 50-100 years.… More

CASAC Weighs in on the Ozone NAAQS: Might the Clean Air Act Require a Standard Below Background?

The Daily Environment Report last week provided an update on the current status of EPA’s development of a new National Ambient Air Quality Standard for ozone. The current 8-hour standard of 75 ppb is going to be revised downward; EPA currently plans to issue a final rule by September 2014.

Last month, the Clean Air Science Advisory Committee weighed in on EPA’s draft policy assessment for the ozone NAAQS. … More

EPA Issues Two New Superfund Guidance Documents: Plus Ca Change, Plus C’est La Meme Chose

EPA recently released two guidance documents relevant to Superfund practitioners.  One establishes revised procedures regarding how EPA will manage negotiations with PRPs.  The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.

The RD/RA negotiation guidance has to be seen to be believed. It’s a document that seems reasonable on its face,… More

Probably All You Need to Know About the Prospects for a Price on Carbon Any Time Soon

Two trade press reports today make clear how difficult it will be to put a price on carbon in the U.S. any time soon. First, today’s ClimateWire reported that climate skeptics are trying to preempt any effort by conservative budget-balancers to use a carbon tax to accomplish budget goals while still cutting income taxes. ClimateWire quotes Myron Ebell of the Competitive Enterprise Institute as saying that

We have to make the idea of a carbon tax toxic.… More

Accidental Success? Even Without National Climate Policy, US Emissions May Fall Enough To Avoid Failure

In 2009, at the international climate talks in Copenhagen, Denmark, President Obama pledged that the US would reduce its greenhouse gas emissions 17% below 2005 levels by 2020. Since then, national efforts toward comprehensive climate legislation, or even making concrete strides to intentionally reduce emissions on a national scale have been, let’s say… lackluster. But even so, a recent report by Resources for the Future predicts that the US will hit 16.3% reductions over a 2005 baseline by 2020. … More

Is EPA Considering Allowing PCB Cleanups to Proceed Under RCRA, Rather Than TSCA? I’ll Believe It When I See It (And I Hope I See It)

One headline in today’s Daily Environment Report stated that “EPA Considers PCB Regulatory Reform Amid State Regulator Criticism of Program.” Even my advanced sarcasm skills failed me on reading this. I’ll therefore settle for “about bloody time.”

The original fault certainly lies with Congress, not EPA. The notion that Congress needed a separate statutory regime to deal with one specific compound (ok, family of compounds) was always foolish.… More

The Wheels of Regulatory Reform May Grind Slowly, But In Massachusetts, At Least They Are Grinding

In April 2011, MassDEP launched a regulatory reform initiative. Yours truly participated in the original stakeholder group working with MassDEP to develop a list of potential reforms. Last week, MassDEP provided an update on the status of the reform package. While it has probably taken longer than Commissioner Kimmell had hoped, I am pleased to say that there is a lot of good stuff at this point, including some items that have been added since the original Action Plan was finalized in March 2012.… More

Another Fine Mess: A Clean Air Act Case Demonstrates the Cost of Regulatory Uncertainty

Late last month, in Wildearth Guardians v. Lamar Utilities Board, Judge David Ebel ruled that Lamar violated the Clean Air Act by not obtaining a MACT determination, given that its potential emissions of hydrochloric acid were 10.3 tons per year, above the 10 tpy limit for any single hazardous air pollutant. The decision provides an abject lesson on the costs imposed by regulatory uncertainty.

The facts,… More

FTC’s New Guidance Has Teeth to Go After Greenwashing

Companies who want to market their products as being good for the environment will need to back up their claims more carefully, in light of the Federal Trade Commission’s new environmental marketing guidelines, released this week. The “Guides for the Use of Environmental Marketing Claims,” or Green Guides, updated for the first time since 1998, discourage companies from using broad claims like “green,” “eco-friendly”, or “environmentally preferable”… More

Another Nail in the Public Nuisance Litigation Coffin: The 9th Circuit Affirms Dismissal of the Kivalina Claims

On Friday, in Native Village of Kivalina v. ExxonMobil, the 9th Circuit Court of Appeals may have sounded the death knell for public nuisance litigation concerning the impacts of climate change, affirming dismissal of the damage claims brought by the City of Kivalina and the Native Village of Kivalina against major greenhouse gas emitters.

kivalina(1)As most readers will know, last year,… More

EPA Wins an NSR Case: “Routine” Pretty Much Means Routine for the Unit

Last week, in United States v. Louisiana Generating, EPA won a ruling regarding what type of projects fall within the routine maintenance, repair or replacement exception from the rule that facility modifications are subject to PSD/NSR requirements. The decision is thorough in that it carefully reviews the so-called “WEPCO Factors” – the nature, extent, purpose, frequency, and cost of the work, and applied them to the work at issue in this case,… More

MassDEP Issues Its Decision on the Palmer Bio-mass Facility: Right on the Merits, Wrong on Standing

I finally had an opportunity to review the recent Final Decision in In the Matter of Palmer Renewable Energy, concerning the proposed Palmer biomass facility. Last week, MassDEP Commissioner Ken Kimmell affirmed the Recommended Final Decision by Presiding Officer Timothy Jones, rejecting challenges by the Conservation Law Foundation to the air permit issued to the project by MassDEP. For practitioners, the case is important, but a decidedly mixed bag.… More

EPA Approves Colorado’s Regional Haze Plan: What Does Colorado Know That the Rest of the Country Hasn’t Yet Figured Out?

On Tuesday, EPA formally approved Colorado’s state implementation plan to address regional haze. According to a press release from Governor John Hickenlooper, the plan will reduce power plant emissions by more than 70,000 tons by 2018. Notably, it will include closure of coal-fired power plants. Indeed, Daily Environment Report stated that “coal-fired power generation will be gone from the Denver metro region by 2018” as a result of the plan.… More

Ban the Bottle or Preserve Our Liberty? Concord Bans the Sale of Certain Plastic Water Bottles

This may not be the most earth-shattering stories reported in this space, but it is a Massachusetts story, and the rhetoric surrounding the issue is sufficiently noteworthy that I thought I would, er, note it. Concord, Massachusetts, has apparently become the first community in the nation to ban the sale of certain plastic water bottles.

According to the Boston Globe, the ban was championed by Concord resident Jean Hill,… More

RGGI’s Sweet 17th: Cumulative Proceeds Top A Billion Dollars

Last week marked the 17th Auction in the Regional Greenhouse Gas Initiative (RGGI). The number of bidders who went through the process of qualifying to participate in the auction is the lowest it has been in the program’s history — 29, down from 35 from the last auction in June, and well below the high of 84 in the first auction involving all member states, held in December 2008.… More

An Example of True Judicial Restraint: Judge Robert Chambers Affirms the Highland Mining 404 Permit

After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps’ § 404 permit for Highland Mining’s Reylas Surface Mine, seemed particularly notable. I cannot recall of similar example of a judge who was almost visibly restraining himself,… More

Judicial Activism and Judicial Restraint: The 5th Circuit Vacates EPA’s Disapproval of Texas SIP Revisions Concerning Minor Sources

On Friday, in Texas v. EPA, the 5th Circuit Court of Appeals vacated EPA’s decision rejecting Texas’s SIP revisions that would have implemented (and did implement, for 16 years) a Flexible Permit Program for minor NSR sources. While genuflecting at the altar of deference to agency decisionmaking, the Court concluded that EPA’s rejection was not based on either EPA factual determinations or on its interpretation of federal,… More

Challenging EPA NPDES Permitting Decisions Remains a Really, Really, Uphill Battle

The decision by the First Circuit Court of Appeals on Friday in Upper Blackstone Water Pollution Abatement Control District v. EPA confirms how difficult it is to challenge EPA NPDES permitting decisions. The case involves nutrient loadings in the Blackstone River and, ultimately, Narragansett Bay. As the opinion discusses, phosphorus in the Blackstone River and nitrogen in Narragansett Bay are causing severe eutrophication problems. As a result,… More

More on Back-Up Generators: NESCAUM Raises Concerns

For those of you following EPA’s proposal to allow increased use of backup generators used in demand response programs, NESCAUM has now joined the fray. In a report released yesterday and available on its website, NESCAUM stated that:

Preliminary screening analyses indicate that uncontrolled diesel backup generators operating under the exemption included in EPA’s recent proposal could by themselves create hotspots exceeding the national health-based 1-hour NO2 air standard.… More

EPA Loses Another Battle in the War Over Guidance: Judge Walton Rejects EPA’s Final Guidance on Mountaintop Removal Permits Under the CWA

Yesterday, Judge Reggie Walton issued his final decision in National Mining Association v. Jackson. The decision is another blow to EPA’s efforts to regulate through guidance rather than notice and comment rule making.

The decision is not a surprise to anyone who has been following the case. As I noted early last year, Judge Walton telegraphed his views when he stated that even EPA’s Interim Guidance “qualified as final agency action because …… More

EPA Wins Another CAA Case: No Affirmative Defense For Excess Emissions During Planned Maintenance

Score a victory for EPA in its long-running set of disputes with the State of Texas and generation facilities in Texas. Yesterday, in Luminant Generation Co. v. United States Environmental Protection Agency, the 5th Circuit Court of Appeals affirmed EPA’s decision to partially approval and partially reject the Texas SIP, essentially rejecting both environmentalist and industry challenges to EPA’s determination regarding excess emissions during startup,… More

More Tea Leaves to Read: EPA Announces an Eleven-Month Delay in Its Cooling Water Intake Structure Rule

Earlier this week, I noted that EPA had announced that it was reconsidering parts of the Utility MACT rule and staying its effectiveness for three months. Yesterday, EPA announced that it was delaying for 11 months final promulgation of its cooling water intake structure rule for existing facilities under the Clean Water Act.

Reaction was predictable. Reed Super, plaintiffs’ attorney was “disappointed,” but clearly resigned.… More

How Good Are You At Reading Tea Leaves? EPA Intends To Reconsider Parts of the Mercury Rule

On Friday, EPA announced that it was reconsidering part of the Utility MACT rule. As part of the reconsideration, EPA will stay the effectiveness of the new source emission standards in the rule for three months.

EPA stated that:

We anticipate that he focus of the reconsideration rulemaking will be a review of issues that are largely technical in nature. Our expectation is that under the reconsideration rule new sources will be required to install the latest and most effective pollution controls and will be able to monitor compliance with the new standards with proven monitoring methods.… More

Two Wins in a Week for EPA on NAAQS: The DC Circuit Upholds EPA’s New SO2 Standard

On Wednesday, I discussed the DC Circuit’s decision affirming EPA’s revised NAAQS for NOx. Today, the DC Circuit upheld EPA’s revised SO2 standard. The tenor of today’s decision, written by David Sentelle, another Reagan appointee (the NOx decision was written by Douglas Ginsburg), is fairly similar to that in the NOx decision. Here’s the short version of the opinion:

EPA must establish NAAQS that protect public health with “an adequate margin of safety.” For that reason,… More

Not a Good Start for Challenges to EPA NAAQS Revisions: The District of Columbia Court of Appeals Affirms EPA’s New NOx NAAQS

Yesterday, in American Petroleum Institute v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s revisions to the National Ambient Air Quality Standard for NOx. The revisions adopted, for the first time, an hourly NAAQS for NOx, in addition to the annual standard.

API made a number of assertions that EPA had been arbitrary and capricious in its review of the scientific evidence concerning potential short-term impacts. The most important were EPA’s reliance,… More

A Thoughtful Discussion By Policy Makers of a Difficult Issue? How Refreshing!

As I noted in May, EPA’s recent proposed rule regarding backup generators would allow additional operations by such generators when used to assist in demand response. It’s a tricky issue, because diesel generators are not clean, and the aggregated emissions from a number of small, but uncontrolled diesel generators can be significant. 

For now, based on the proposal, EPA has come down on the side of encouraging the demand response industry. Nonetheless,… More

The Tailoring Rule Requires No Alterations: EPA Leaves GHG Permitting Thresholds Unchanged

Last Friday, Lisa Jackson signed “Step 3” of the Tailoring Rule. In what was probably not a surprise to many, EPA determined

that state permitting authorities have not had sufficient time to develop necessary permitting infrastructure and to increase their GHG permitting expertise and capacity. By the same token, EPA and the state permitting authorities have not had the opportunity to develop and implement streamlining approaches.… More

Easy Cases Make No Law (We Hope): The D.C. Circuit Upholds EPA’s Greenhouse Gas Regulations

Yesterday, in Coalition for Responsible Regulation v. EPA, the D.C. Circuit Court of Appeals rejected all challenges to EPA’s GHG rules. The decision is a reminder that important cases, or those with big stakes, are not necessarily difficult cases. Anyone reviewing the decision will quickly see that, to the court, this was not a hard case. Indeed, the tone of the opinion has the feel of a teacher lecturing a student where the teacher has a sense that the student is being willfully obtuse.… More

EPA Proposes Revisions to the PM 2.5 NAAQS: How Much Will It Matter?

Last Thursday, in response to a court order, EPA finally proposed revisions to the national ambient air quality standard for PM2.5. The most significant part of the rule is EPA’s proposal to lower the primary annual standard from 15 ug/m3 to a range of from 12 ug/m3 to 13 ug/m3.

At a certain level, the proposal should not really be news and should not have a significant impact. After all,… More

In RGGI News: Compliance is Up, Emissions are Down, Sales are Flat, and New Jersey and New Hampshire are Either In Or Out

There have been a number of news stories about the Regional Greenhouse Gas Initiative (RGGI) in the last few weeks.  First, nearly all of the 211 power plants subject to the requirements of RGGI’s first compliance period met their compliance obligations for 2009-2011.  Only five facilities failed to hold enough allowances in their compliance accounts to cover their emissions from this period — four plants from New York,… More

Do I Detect a Pattern? Congressional Inaction on TSCA Leads to Scattershot State Regulation

Yogi Berra is credited with the phrase “déjà vu all over again.” Today’s environmental law manifestation of Yogi’s phenomenon stems from the current gridlock in Congress. A story last week in the Daily Environment Report noted that, following Congressional failure to enact TSCA reform, 30 states (give or take, apparently) have either passed some kind of chemical management law or issued an executive order addressing the issue of toxics control.… More

One Small Step For Regulatory Coordination: EPA Incorporates the Transport Rule Into the Regional Haze Rule

On May 30, EPA issued a final rule as part of its regional haze program. The most significant aspect of the rule is the determination that the trading programs in EPA’s Trading Rule, now known the by inelegant acronym CSAPR,

achieve greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology, or BART. 

Of course,… More

EPA Issues a § 316(b) Notice of Data Availability: Even Edison Electric Is Impressed

Late last week, EPA issued a Notice of Data Availability concerning its proposed rule for cooling water intake structures at existing facilities. The NODA stated that, since it had issued the proposed CWIS rule, it had received more than 80 studies providing additional data on CWIS structures at existing facilities. Those studies have led EPA to consider potential revisions to the rule prior to promulgation.

Some of the specific revisions now under consideration include:

  • The addition of site-specific impingement mortality controls
  • Compliance with impingement mortality limitations based on defined technologies such as closed cycle recirculating systems
  • Streamlined permitting for modified traveling screens
  • Clarification of credit for existing technologies
  • Potential limited exemptions for facilities with low impingement rates

In response,… More

BOEM Identifies a Wind Energy Area offshore Massachusetts: Will the Next Project Take Less Time Than Cape Wind?

offshore wind areasLast Wednesday, the Bureau of Ocean Energy Management announced that it has identified an area offshore Massachusetts for commercial wind energy development. BOEM narrowed the area somewhat from what had been proposed, based on certain wildlife concerns. Although the identification of the area as part of the Department of the Interior’s Smart from the Start program will allow expedited permitting, individual projects by lessees would be subject to NEPA.… More

Two Strikes Against Common Law Approaches to Climate Change: The Atmosphere Is Not A Public Trust

Yesterday, the District Court for the District of Columbia dismissed the so-called “public trust” climate change law suit. I will certainly give the plaintiffs in these cases credit for both originality and persistence. Legal merit and good public policy are another matter.

In any case, the plaintiffs sued EPA and various other federal agencies, seeking a finding that the agencies have failed adequately to protect a public trust asset,… More

Mayors Request Moratorium on Stormwater Enforcement — Will EPA Listen?

E&E News reported yesterday that the U.S. Conference of Mayors has requested a “moratorium” on Clean Water Act enforcement of stormwater limitations on municipalities. The report makes clear that the Mayors avoided an attack on either the CWA or the current EPA administration. Moreover, they acknowledged that there is still “much to be done to protect our water resources.”

Why the moratorium request, then? Two words – they’re broke. One of the mayors who spoke was Michael Bissonnette of Chicopee,… More

EPA Proposes Revisions to the Back-up Generator Rule: Reasonable Flexibility or a Dirty Loophole?

Yesterday, EPA released proposed revisions to its rules governing emissions from emergency back-up generators. It’s not always the most exciting of topics, but it is important. Many facilities have back-up generators and I know from experience advising clients that, precisely because back-up generators do not run that often, operators can run into compliance issues.

The most important aspect of the proposed rule is that EPA would allow back-up generators to run for up to 100 hours without being subject to emissions limits for the following reasons:

  • Monitoring and testing
  • Demand response
  • Voltage changes of at least 5%

Moreover,… More

Repeat After Me: There Ain’t No Such Thing as a Free Lunch

Yesterday, the Boston Globe reported that MassDEP is considering promulgating new regulations to manage noise from on-shore wind turbines. I sympathize with my friends at MassDEP, who are trying to implement a clean energy agenda and ensure that Massachusetts meets the aggressive carbon reduction targets in the Global Warming Solutions Act. This is no easy task in a home rule state that would have a fighting chance to win any national NIMBY championship competition. … More

EPA Defends the Biomass Deferral Rule — It Feels More Like Rube Goldberg Every Day

On Tuesday, EPA filed its brief in support of its rule deferring regulation of GHG emissions from biomass facilities until 2014. I have two immediate reactions.

The first is that, as a policy matter, the deferral was absolutely the right thing to do. The science remains complex and not fully understood. Any regulations promulgated now are likely to be revised at some point. That kind of regulatory uncertainty is not any way to run an agency.… More

Cass Sunstein Is Still Pushing Regulatory Reform — Why Isn’t Everyone Happy?

Yesterday, President Obama released another Executive Order on regulatory reform. The new order expands on EO 13563, and provides three new requirements on agencies:

  • Twice yearly reporting by agencies to the Office of Information and Regulatory Affairs concerning the status of reform efforts,
  • Increased public participation in regulatory reform, and
  • An obligation to prioritize agency reform efforts to “produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health”

Reactions were predictable. … More

Here’s a Suprise — A Cap-and-Trade System For Nutrients Would Substantially Decrease the Cost of Nutrient Reductions in Chesapeake Bay

bayslammYesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay.
Pardon me if I seem to be posting a lot of dog bites man stories recently.

Although it should not come as a surprise that a trading system would permit nutrient reductions to be attained most cost-effectively,… More

New Rapanos Guidance: Is It Guidance Or Is It Really Legislation?

Industry groups and environmentalists continue to do battle over EPA’s efforts to update its post-Rapanos guidanceGreenwire reports that 12 different groups have met with “the White House” in the past six weeks. As this process drags on, one cannot help but ask why this guidance is even being issued at all.

At an earlier point, I acknowledged that this might actually be an appropriate situation in which to use guidance,… More

Dog Bites Man, Greenhouse Gas NSPS Edition

Yesterday, Greenwire reported about speculation regarding what impact EPA’s proposed New Source Performance Standards for greenhouses gases would have on potential regulation of existing sources. As Greenwire noted, while EPA sought to downplay the impact of the NSPS on regulation of existing sources, both environmentalists and industry representatives think that regulation of existing sources is pretty much inevitable.

My favorite bit from the story is that OMB apparently deleted the following language from EPA’s proposal:

At a future date,… More

Wondering About the Status of EPA’s CCR Rule? So Are 11 Environmental Groups

I have had a number of clients ask me recently about the status of EPA’s efforts to regulate coal combustion residuals under RCRA. It turns out that some environmental groups have been asking themselves the same question. Being environmental groups, however, they did more than ask about it. They sued.

As most readers know, EPA published two separate proposals for regulating coal ash – one under Subtitle C and one under Subtitle D – on June 21,… More

EPA Issues Its GHG NSPS: Cap and Trade Never Looked So Good

On Tuesday, EPA announced release of its proposed New Source Performance Standards for carbon pollution from new power plants. I’m feeling like a broken record here. Everyone’s acting on rational motives (if not rationally), but the result remains, to put it mildly, suboptimal. On the paramount environmental issue of the day, we’re going about it all wrong, when we know that there is a better way.

I cannot really blame EPA or the environmentalists. … More

RGGI’s First Auction of the Second Compliance Period

The auction held last Wednesday, March 14th, by the Regional Greenhouse Gas Initiative (RGGI) was the fifteenth held so far — making it seem far from novel —  but as we highlighted in January, this first auction of RGGI’s second compliance period could provide interesting insight into the future of the program.   

According to the market monitor report, 21.5 million (62%) of the 34.8 million allowances offered for sale by the 9-state group sold at last week’s auction,… More

EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep?

For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.

The first is what will happen to CWA enforcement. On that score,… More

The Geneva Association Warns Governments To “Wake Up”: Have They Too Drunk The Koolaid?

Last week, the Geneva Association, which describes itself as “the leading international insurance think tank for strategically important insurance and risk management issues,” issued a report entitled “Extreme events and insurance: 2011 annus horribilis.” Quick take-away? Insurance losses are growing. Why? While there were large earthquakes in 2011, the bigger long-term concerns are extreme weather events and an increasing number of people and resources located in areas subject to such events.… More

New Jersey Promulgates A Regulation Permitting Waiver of Environmental Regulations: Will the Environment In New Jersey Collapse as a Result?

Late last week, the New Jersey Department of Environmental Protection adopted a rule providing itself with the authority to waive environmental regulations in limited circumstances. According to the Daily Environmental Report, opponents of the regulation immediately attacked the rule, saying that it

is an attack on environmental protections and will open up New Jersey’s regulatory system to pay-to-lay. This rule will not only undo 30 years of environmental protections but will create more pollution,… More

CEQ Issues Guidance For Streamlining NEPA Reviews: Can You Say “Content-Free”?

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging appropriate flexibility in complying with NEPA. I’m not sold.

In fairness,… More

Shocking News: The D.C. Circuit Court of Appeals Is Not Going to Overturn Massachusetts v. EPA

Since I already violated my rule against speculating on the outcome of a case based on oral argument, I might as well do it again. I have always said that EPA’s endangerment finding would survive judicial review and that conclusion seems only more likely to prove correct following yesterday’s oral argument before the D.C. Circuit Court of Appeals.

Both the Daily Environment Report and GreenWire noted in their reporting on the argument that the groups challenging the rule emphasized that EPA had not considered the policy implications of making the endangerment finding. Of course. Precisely. That’s because the Clean Air Act itself divorces the endangerment finding from its policy implications. If there were any doubt about that,… More

EPA Issues Step 3 of the Tailoring Rule: Did Anyone Hear the Tree Fall?

On Friday, EPA released “Step 3” of the GHG Tailoring Rule. The big news is no news at all. EPA left the GHG permitting thresholds unchanged, at 100,000 tons per year of carbon dioxide equivalent for new facilities and increases of 75,000 tpy of CO2e for existing facilities. In a phrase repeated in EPA’s fact sheet, keeping the thresholds unchanged is part of EPA’s “common sense … approach” to GHG permitting.… More

Obama Budget Would Cut Superfund by 6%: How About A New Approach?

According to a report in yesterday’s Greenwire, President Obama’s proposed budget would reduce Superfund spending by 6%, from $565 million to $532 million. I still don’t understand why Obama, particularly with Cass Sunstein still at OMB, hasn’t turned this problem into an opportunity. I know I’ve flogged this one before, but a significant part of the explanation for the size of the Superfund budget is related to CERCLA’s status as the last bastion of command and control regulation. Everyone who practices in this area could provide endless examples of the almost unbelievable extent of micromanaging indulged in by EPA and its consultants. Even where EPA is recovering oversight costs,… More

EPA’s Risk Assessment Machinery Grinds Exceedingly Slowly, but PCE is Now a Likely Human Carcinogen

On Friday, EPA finally issued its long-awaited revised risk assessment for tetrachloroethylene, also known as perc or PCE. EPA also issued a fact sheet summarizing its current views about PCE and how the new risk assessment fits into the Clean Air Act, Safe Drinking Water Act, and CERCLA regulatory regimes.

Because PCE is present at so many Superfund Sites, and given the number of dry cleaners – including many in residential areas – still using PCE,… More

Does Energy Efficient Technology Make Buildings More Energy Efficient? The Answer May Not Be So Obvious

ClimateWire had a fascinating story on Monday about federal efforts to increase the energy efficiency of buildings, which are estimated to consume about 40% of our nation’s energy. The story concerns the less than inspiringly-named Greater Philadelphia Innovation Cluster for Energy-Efficient Buildings, which is seeking to substantially alter how building owners think about energy efficiency and the use of technology.

The problem facing GPIC, as it is known,… More

One Small Step Forward For Mid-Atlantic Offshore Wind Development

offshore-wind-power-7259Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report.… More

Utility MACT and Reliability: One More Brief Post

When I last posted on the potential impact of the Utility MACT rule on electric system reliability, I swore I was done with the subject. I knew then it was probably a mistake. Yesterday, FERC announced that it has issued a White Paper on how it will respond to requests by generators to EPA for an extension of time to comply under the Utility MACT rule. Since FERC has invited comments on the White Paper,… More

RGGI Makes Some Changes, But Not the Overall Cap. Yet.

The nine states still participating in the Regional Greenhouse Gas Initiative are getting ready for the first auction of RGGI’s second compliance period, scheduled for March 14th.  In the auction notice released last week, they announced 4 changes to the program, and analysts are predicting there are far more significant changes to come — namely adjustments to the total emissions cap. 

The first change: which we knew was coming;… More

Do We Need the Precautionary Principle To Protect Us From Potential Risks From Nanotechnology? The NRDC Thinks So

nanosilverIn a prior rant, I raised the concern that EPA would oppose the use of new cleanup technologies based on nanotechnologies on the basis of the precautionary principle. I may not have been exactly on the mark, but I was pretty close. On Thursday, the NRDC announced that it has filed suit challenging EPA’s decision to issue a conditional registration of a nanosilver-based
antimicrobial agent
. … More

Lisa Jackson Says Public Pressure Will Clean Up Fracking. Really.

According to E&E News, Lisa Jackson said Friday that public pressure, not EPA regulation, will clean up fracking. 

Fracking fluids will get greener, water use will get down, all because the industry, quite frankly, will do it, must do it, and will feel the public pressure — not the EPA pressure — to do this in a responsible way.

Does she really mean it? Notwithstanding current pronouncements by the GOP Presidential candidates,… More

This Just In: EPA’s Utility MACT Rule Will Not Cause the Lights to Go Out.

As readers of this blog know, the impact of EPA air rules, including in particular the Utility MACT rule, on the reliability of the nation’s electric grid has been the subject of much speculation. Last week, the Congressional Research Service weighed in, with the exciting headline: EPA’s Utility MACT: Will the Lights Go Out?” Of course, notwithstanding the sexy title, the CRS conclusion can be summarized pretty simply: the MACT rule will not cause the lights to go out. Money quote:

although the rule may lead to the retirement or derating of some facilities,… More

Is Massachusetts the NIMBY Capital of the World? What Will Be the Impact of the Wind Turbine Health Impact Study?

Yesterday, the “Independent Expert Panel” convened by MassDEP to review whether wind turbines cause any adverse health effects issued its report. I was pleased that the headline in the Boston Globe was that “Wind turbines don’t cause health problems.” Similarly, the Daily Environment Report headline was that “Massachusetts Study Finds ‘No Evidence’ of Health Impacts from Wind Turbines.” 

I hope that that’s the way the report will be read,… More

For Those of You Who Cannot Get Enough About Sackett

Just in case you are not sated with coverage about the Supreme Court argument in Sackett and the potential implications if EPA loses, I thought I would note that I did a brief (8 minutes) interview with LexBlog Network about the issues it presents. You can see it hereMore

More on the Frontlines of Adaptation

Last Friday, noting a story about the extent to which concerns about sea level rise from climate change might affect development in East Boston, I wondered whether battles over whether and how to adapt to climate change might be moving from the realm of the hypothetical to the realm of the real. Climate Wire has now begun a series of stories on how cities are planning for climate change. This week,… More

Is the Bell About to Toll on EPA’s Enforcement Order Authority? The Supreme Court Hears Oral Argument in Sackett

I am generally loath to speculate about what the Supreme Court will do based on oral argument, but the overwhelming reaction to the oral argument in Sackett v. EPA was that EPA is going to lose. What would a loss mean? In simplest terms, EPA would no longer be able to issue enforcement orders under the Clean Water Act without those orders being subject to judicial review. Such a decision would undeniably be significant. Everyone practicing in this area knows how coercive EPA enforcement orders can be. A person who thinks that he is not liable or that the order is inappropriate,… More

Has the Battle Begun? A Look at One of the Front Lines of the Adaptation Issue

A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.… More

Yes, Virginia, the Burden of Proof Does Matter

The decision yesterday in United States v. Minnkota Power Cooperative serves as a useful reminder regarding how important the burden of proof is in review of agency decisions. The case started in 2006, as part of DOJ’s NSR enforcement initiative, when the United States and North Dakota brought suit against Minnkota’s Milton R. Young Station. The parties settled and a consent decree was entered. Apparently,… More

Will Slow But Steady Win the Race? Cape Wind Clears One More Hurdle

The Massachusetts Supreme Judicial Court today affirmed the decision by the Department of Public Utilities to approve the power purchase agreement, or PPA, between Cape Wind and National Grid. (Full disclosure: Foley Hoag represented the Department of Energy Resources in support of the contract before the DPU.) The decision doesn’t mean that Cape Wind will now get built. Given the (one hopes) temporary problems with the federal loan guarantee program and Cape Wind’s failure thus far to sell the rest of the power from the project,… More

MassDEP Issues Vapor Intrusion Guidance: Don’t Worry; It’s Only Guidance

Last week, MassDEP finally issued its long-awaited vapor intrusion guidance. Including appendices, it is 148 pages. There is a separate 52-page response to comments on the draft guidance. MassDEP has certainly learned that guidance must at least be described as guidance. The disclaimer runs a full page, and includes the following text:

MassDEP generally does not intend the guidance to be overly prescriptive.… More

EPA Promulgates The Utility MACT Rule: The World Has Not Yet Come to an End

On Wednesday, EPA promulgated the final Utility MACT rule. I doubt that anyone reading this blog isn’t already aware of the big news.

As seems frequently to be the case with EPA rules, this one, weighing in at 2.4MB and 1,117 pages, cannot easily be summarized here. In fact, the rule is so complicated – and controversial – that EPA had to generate four separate fact sheets to summarize the rule and its impacts: (1) Costs and Benefits (or,… More

Words Matter in Environmental Cleanup Standards

In New York State Superfund Coalition, Inc., v. New York State Department of Environmental Conservation, the highest court in New York recently put its own gloss on the long-standing environmental issue of “How Clean is Clean”. There, the court held that, even though liability for cleanup under New York’s state Superfund statute is triggered when there is a “significant threat” to the environment, the state has authority to promulgate regulations requiring cleanup beyond what would be necessary to eliminate that significant threat.… More

EPA Further Delays Issuance of Post-Construction Stormwater Regulation Proposal; Contractors and Developers Are Distraught (Not!)

Those following stormwater issues know that EPA is overdue to promulgate a proposed rule for stormwater controls at post-construction sites. The rule has been extremely controversial, with groups such as the Associated General Contractors arguing that EPA has no authority to promulgate post-construction rules. EPA was originally scheduled to issue the proposed rule by September 30. When EPA couldn’t meet that deadline, it negotiated an extension until December 2 (while stating that the deadline for the final rule,… More

Can Coal’s Friends in Congress Save It? Goldman Sachs Isn’t So Sure

Market-watchers thinking that having friends in Congress means that coal can flourish despite EPA regulation on many fronts may have a different view to ponder. Goldman Sachs predicted last week that generators will continue to switch from coal to natural gas and downgraded the prospects of the coal industry from “attractive” to “neutral.” Specifically, Goldman predicted that 51 GW of coal electric generating capacity are on their way out and that EPA Cross State Air Pollution Rule,… More

Sauce For the Goose? Home Builders Lose a Standing Battle

Developers have cheered in recent years as the Supreme Court has tightened its standing rules. In a decision issued on Friday in National Association of Home Builders v. EPA, the Court of Appeals for the District of Columbia may have hoist the developers on their own petard.

After EPA and the Army Corps of Engineers issued a determination that two reaches of the Santa Cruz River constitute “traditional navigable waters” under the Clean Water Act,… More

EPA Compromises (Again) on the Boiler Rule: Will It Get Any Credit?

On Friday, EPA proposed certain revisions to its rule on air emissions from boilers and commercial and industrial solid waste incinerators (CISWI). As with other major rules under development in the past few years, EPA has taken fairly substantial steps to limit the reach of the rule to those boilers and CISWI that are of greatest concern. Without engaging in formal cost-effectiveness analysis, EPA has sought to make the rule as cost-effective as possible.… More

Reliability Concerns? NERC Says Yes; EPA Blasts Flawed Assumptions

Yesterday, the North American Electric Reliability Corporation, or NERC, released its 2011 Long-Term Reliability Assessment. The NERC report identified environmental regulations as one “of the greatest risks” to reliability. Much of the focus of the concern was on EPA’s MACT rule for hazardous air pollutants and its 316(b) rule for cooling water intake structures. While expressing uncertainty about these not-yet finalized rules, the NERC report took an extremely cautious approach,… More

Will EPA’s “Train Wreck” Affect Reliability? At Least One FERC Commissioner Is Still Concerned

There has already been significant attention devoted to whether EPA’s “train wreck” of rules affecting coal-fired power plants would affect electric system reliability. The Congressional Research Service analysis looked at the coming rules more broadly, but did touch on reliability, noting that most of the coal plants likely to be retired as a result of EPA regulations are small and inefficient, and already run infrequently. As we noted last June,… More

The Economics of RGGI: A Net Positive, Particularly For New England

With the first compliance period in the Regional Greenhouse Gas Initiative (RGGI) coming to a close in December, it seems an appropriate time to look back at what we can learn from the country’s first market-based program aimed at reducing emissions of carbon dioxide from power plants. A report released Tuesday by the Analysis Group analyzed the economic impacts of RGGI – how the program impacted electricity prices,… More

Dog Bites Man: Environmental Impact Edition

Casablanca36Earlier this week, Greenwire noted a Los Angeles Times story reporting that businesses are using the California Environmental Quality Act – California’s version of NEPA – as a tool of economic competition, trying to kill or delay projects for economic reasons. Much like Claude Rains, I am shocked, shocked, to find that there is strategic litigation going on here. In the past two years,… More

Go Ahead and Destroy the Environment; NEPA Won’t Stop You

Strawberry CanyonIt is, as the lawyers say, black letter law that the National Environmental Policy Act, or NEPA, is a procedural statute, which provides no substantive protection to the environment. It merely requires the appropriate level of assessment of the potential environmental consequences of federal action. Whether the action should be taken is outside NEPA’s purview.

Rarely, however, has this critical limitation on NEPA’s scope been stated so plainly as in yesterday’s decision in Save Strawberry Canyon v.… More

Jack-Booted Thugs — You Know Who You Are

Two seemingly unrelated stories from last week suggest that EPA may have its limits in how far it is going to go to make nice with those who are opposing its regulatory agenda. The first story, reported by Greenwire, is pretty much all in the headline: “EPA official accuses Kan. department of lying over proposed plant.” The second story, also from GreenWire, reported that EPA Administrator Lisa Jackson referred to opponents of EPA’s greenhouse gas tailoring rule as “… More

Building Efficiency — Everyone Is In Favor, But How Do We Get There?

Yesterday, the Daily Environment Report noted the formation of the Coalition for Better Buildings, or C4BB, an alliance of environmental, business, and real estate interests intended to increase the incentives to make buildings more energy-efficient. Its members include real estate trade groups such as the Real Estate Roundtable and the Building Owners and Managers Association, as well as some heavyweight companies, such as Vornado. It also includes environmental groups such as the NRDC and companies who will look to profit from investments in building efficiency,… More

MassDEP Issues Its Regulatory Reform Proposal

Earlier this week, the Massachusetts DEP issued a package of regulatory reforms. While the focus of the package was on finding ways for MassDEP to implement its mission with fewer resources, a number of the reforms are specifically targeted at facilitating the development of renewable energy. If you want to see more about that angle, you can take a look at our client alert about the reforms.… More

Who’s Afraid of Cost-Benefit Analysis?

Cost Benefit Analysis(1)E&E Daily reported this week that Congressional Democrats are opposing the Regulatory Accountability Act of 2011. H.R. 3010 would codify a requirement for cost-benefit analysis of major regulations in the Administrative Procedures Act. According to the report, John Conyers, ranking member on the House Judiciary Committee stated that the RAA

would amend the Administrative Procedure Act in ways that would effectively halt agency rulemaking and undermine public health and safety rules.… More

EPA Loses Another One: Enhanced Mountaintop Mining Reviews Struck Down

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already expressed skepticism about EPA’s mountaintop removal guidance. Last week, in the latest decision in National Mining Association v.… More

EPA Loses a PSD Enforcement Case — Big Time

EPA may have had problems in court in recent years defending its regulations, but it has generally fared much better in its enforcement cases. Earlier this week, however, EPA suffered what will be, if it is affirmed, a devastating defeat in its PSD/NSR enforcement initiative. In United States v. EME Homer City Generation, Judge Terrence McVerry concluded that the government could get no relief against either the former owners of the facility or the current owners or operator. No penalties. No injunctive relief. No relief under state law. Nothing. Nada.… More

Yet More Citizen Suits on the Way? EPA Again Upgrades the ECHO Data Base

As some of our clients know all too well, I am spending much time these days defending citizen suits. As federal and state agency budgets get slashed, we’re only going to see more such suits, unless a Tea Party-controlled Congress amends the relevant statutes to cut back on citizen suit provisions. 

In a move that will facilitate citizen enforcement, EPA announced last week that it has yet again upgraded its Enforcement and Compliance History Online,… More

Inspector General’s Evaluation of EPA’s Endangerment Finding: Form over Function?

As Greenwire reported, the Inspector General of the EPA recently released a report criticizing how the agency followed (and deviated from) procedures in publishing the Technical Support Document that underpinned its December 2009 Endangerment Finding.  The IG was instructed to conduct this review at the order of Senator Inhofe (R-OK), the ranking Republican on the Senate Committee on Environment and Public Works.  The review, which cost nearly $300,000,… More

Coming Soon to Massachusetts: Adaptation to Climate Change

The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; Key Infrastructure; Human Health and Welfare; Local Economy and Government;… More

EPA Issues Its Environmental Justice Plan: Words (Almost) Fail Me

Last year, I compared EPA’s Interim Guidance on Considering Environmental Justice During the Development of an Action to Rube Goldberg – and that was only EJ Guidance on Rulemaking. Now EPA has issued its comprehensive Plan EJ 2014. I still find the resources devoted to this subject by EPA and the convolutions it is going through to analyze the issue to be stunning.

I also still think that my simple analysis from last year is not too simplistic. … More

Score One For Affordable Housing: Chapter 40B Trumps Vague Local Environmental Concerns

In an interesting decision issued today, in Zoning Board of Appeals of Holliston v. Housing Appeals Committee, the Massachusetts Appeals Court held that a local zoning board of appeals cannot use vague local environmental concerns as a basis for denying a comprehensive permit under the Massachusetts affordable housing statute, Chapter 40B. As those practicing in this area know, Chapter 40B consolidates all local permitting before the zoning board of appeals. The board can deny permits based on local needs,… More

One More Ozone Post: Who Will Act First, EPA or the Courts?

roseanne roseannadannaFollowing EPA’s decision last week to scrap its reconsideration of the 2008 ozone National Ambient Air Quality Standard, the parties to the litigation challenging the 2008 standard are back in court. This week, EPA submitted a brief to the Court of Appeals, which was pretty much a six-page version of Roseanne Roseannadanna’s “Never mind.” After telling the Court for years that it should defer to EPA’s reconsideration process – a decision on which was always just around the corner,… More

Thirteen Proves to Be A Somewhat Unlucky Number for RGGI

The Regional Greenhouse Gas Initiative (RGGI) celebrated its third anniversary by holding its 13th quarterly auction of carbon dioxide allowances on Wednesday.   As today’s Market Monitor report highlights, although the number of bidders was up, the percentage of allowances purchased was down.  Thirty-one bidders purchased just under 18% of the 42,189,685 current compliance period allowances offered for sale by the 10-state group (including New Jersey).  These allowances, with vintage dates from 2010 and 2011,… More

I’m As Mad As H___ and I’m Not Going To Take It Anymore: Massachusetts Historic Commission Edition

Last week, SouthCoastToday and the Herald News both reported that a large expansion by Meditech of its facility in Freetown was on life support, after the Massachusetts Historical Commission required Meditech to strip the top two feet of soil from 21 acres and sieve it for archeological artifacts, at a projected multi-million dollar cost. The Herald News quoted various local leaders calling the MHC’s decision “incomprehensible…arbitrary…bizarre… and unacceptable.” What they did not point out,… More

The Wheels of EPA’s Ozone Reconsideration Have Stopped Grinding Completely: Obama Tells EPA to Stop

Yesterday, in commenting on the court battle over EPA’s reconsideration of the ozone NAAQS, I said that I would be surprised if EPA doesn’t issue the new standard within six months. Oops. My bad. Today, President Obama directed EPA to give up on the reconsideration effort. It’s difficult not to be cynical about the White House decision. As much as I admire Cass Sunstein, his letter to EPA providing the basis for the White House decision is not persuasive. Basically,… More

The Wheels of EPA’s Reconsideration of the Ozone Standard Grind Slowly — Time Will Tell How Finely

This week, EPA filed a brief with the D.C. Circuit Court of Appeals, arguing that, notwithstanding its fourth delay in issuing a decision on its reconsideration of the NAAQS for ozone, the court cannot and should not order EPA to issue a decision. Industry shouldn’t get too excited, however. In the same brief, EPA telegraphed pretty clearly, consistent with its 2010 proposed rule, that it remains on track to significantly decrease the ozone standard from the 0.075 ppm standard promulgated by the Bush administration in 2008.… More

MEPA Case Law: A Lose-Lose Proposition

Yesterday, the SJC issued its eagerly awaited decision in Ten Persons of the Commonwealth v. Fellsway Development. I think that the SJC probably got it right. It says something about MEPA jurisprudence, however, that the decision is good for neither citizen plaintiffs nor for developers. I’d suggest that the legislature go back to the drawing board, but it won’t happen and, if it did, I wouldn’t trust the legislature to get it right.… More

Where You Stand Depend on Where You Sit: Utility MACT Edition

As the deadline passed last week for submitting comments on EPA’s Utility MACT rule, it’s worth taking a big picture look at how the commenters line up. Big utility groups, such as the Edison Electric Institute and the American Public Power Association are looking for EPA to delay the rules. The basic argument is that it is going to take a long time to comply. EEI states that so many facilities will require extensions that the number of requests will create a backlog that will itself essentially create compliance problems.… More

Carbon Capture & Seriously Need a Price on Carbon Emissions

The Environmental Protection Agency proposed a rule yesterday that would exempt carbon dioxide injected into underground carbon capture & storage (CCS) wells from regulation as hazardous waste, so long as the CO2 is held in wells designated for that purpose under the Safe Drinking Water Act.  In its press release announcing the program, EPA noted that the purpose of the regulation — as well as its prior rulemakings under the Clean Air Act to require emissions reporting by CCS facilities,… More

How Many Miles Per Gallon Does Your Building Get? The Ratings Game Comes to Buildings

According to EPA, buildings account for 36 percent of total energy consumption and 65 percent of electricity consumption in the United States. In the absence of comprehensive legislation that would put a price on carbon, which would give building owners direct incentives to implement cost-effective efficiency measures, a number of jurisdictions have started looking into and in some cases implementing requirements that at least commercial buildings be subject to energy efficiency ratings.… More